The legal standard on the scope of teachers' free speech rights in the school setting

I. INTRODUCTION

Public school teachers have widely enjoyed constitutional free speech rights since the Supreme Court's landmark 1968 decision in Pickering v. Board of Education.1 The case focused on a teacher's letter to a local newspaper. The statements in the letter consisted essentially of criticism of the school board's allocation of school funds between educational and athletic programs, and the superintendent's methods of informing (or preventing the informing of) taxpayers of the real reasons why additional tax revenues were being sought for the schools. The school board charged that numerous false statements in the letter damaged the professional reputation of its members and of the school administrators, and then dismissed the teacher. The Illinois courts upheld the dismissal, holding that the conduct was detrimental to the efficient operation and administration of the schools of the district.2

Reversing the state courts, the Supreme Court first ruled that teachers as public employees may not constitutionally be compelled to shed the First Amendment rights they would otherwise enjoy as citizens.3 The Court then applied a balancing principle, weighing interests of a school board as an employer against interests of a teacher as a citizen. Since Pickering, during the 1970s and early 1980s, courts have relied on the Pickering guidelines in striking down a variety of restrictions on teachers' rights to express views on matters of public interest.4

In 1983, the U.S. Supreme Court rendered another significant decision in relation to the First Amendment right of public employees in Connick v. Myers.5 In the early part of October 1980, Sheila Myers, an assistant district attorney was informed that she would be transferred to prosecute cases in a different section of criminal court. Despite her opposition, she was transferred, and she then prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. She distributed the questionnaire to assistant district attorneys.6 She was subsequently terminated, and she filed suit, contending that her employment was wrongfully terminated because she had exercised a constitutionally protected right of free speech.

The Court's concern was to determine whether or not Myers' distribution of the questionnaire was a constitutionally protected activity. The Supreme Court took a different path from Pickering. The Court reversed the lower courts7 which held in favor of the employee on the basis of Pickering. The Connick Court placed an emphasis on the need for the speech in question to address "a matter of public concern." Even though the Court affirmed the utility of the Pickering approach, the Court ruled that it was unnecessary for the judiciary to undertake Pickering analysis unless an employee's speech could be fairly characterized as pertaining to a matter of public concern.8 Since Connick, "public concern" has become a core inquiry to determine whether public employee's speech is protected by the First Amendment. After Connick, many courts have been reluctant to find teachers' public speech to be about matters of public concern and to accord the expression protected status under the First Amendment.9

The two seminal decisions in the Supreme Court have played a leading role in guiding the courts in assessing free speech rights of teachers when their statements became grounds for dismissal or other disciplinary actions. However, The Supreme Court has done little to clarify what types of public employee speech are constitutionally protected.10 The meaning of the term of "matters of public concern" is thus far from clear-cut.11 As a result, the application of these tests has not always turned out consistent conclusions among courts. In 1986, the Fifth Circuit Court of Appeals held that a clerical worker's remark did address public affairs.12 In 1994, the Supreme Court ruled that a nurse, Cheryl Churchill's criticism of cross-training was not on a matter of public concern, which differed from the decision of the Seventh Circuit Court of Appeals.13 The Fifth Circuit Court of Appeals also held that a school principal's public dialogue on high school activity was a private matter and overturned the judgment of the district court in favor of her.14 The courts have varied on whether particular speech involves a matter of public concern. These decisions offer a very scanty explanation of the factors governing the judgments.

This article explores the logical faults, contradictions and inadequacies, which are, explicitly or implicitly, contained in Pickering and Connick. The tests in the Pickering and Connick decisions have flaws that have been rarely addressed, but that have hindered courts in turning out reasonable judgments. To illustrate, the Supreme Court did not distinguish school board's interests as employer from its interests as a governmental entity. The interests of each party in balancing were subsequently mismatched and resulted in favoring the school board. This analysis attempts to explain such problems and interpret Pickering and Connick standards in a consistent way. If successful, it will assist us in resolving more rationally and consistently the scope of teachers' free speech rights in the school setting.

II. CRITICAL RECONSIDERATION OF PICKERING AND CONNICK

A. Confusion between a Status of a Citizen and that of an Employee

Marvin L. Pickering, a public school teacher, wrote a letter to the editor of a local newspaper, accusing the allegedly totalitarian climate in the school district and criticizing the fiscal policy. He wrote in the letter, "To sod football fields on borrowed money and then not be able to pay teachers' salaries is getting the cart before the horse."15 The school board dismissed the teacher for writing and publishing the letter. The Supreme Court of Illinois held that:

the plaintiff here is not a mere member of the public. He holds a position as teacher and is no more entitled to harm the schools by speech. By choosing to teach in the public schools, plaintiff undertook the obligation to refrain from conduct, which in the absence of such position he would have an undoubted right to engage in.16

The United States Supreme Court rejected the Illinois Supreme Court's formulation, holding that simply being a public employee does not deprive one of First Amendment rights. However, the Court observed how much the speaker was akin to a member of the general public in connection to the content of his speech.17 The Court's decision further suggests that only if a teacher could be regarded as a citizen whose speech would have little effect on the teacher's employment relationship, would he be entitled to the same First Amendment protection as if he were a member of the general public; if not, his comments would not be so protected. Therefore the Supreme Court's rationale was not totally different from the Illinois Supreme Court, except that it did widen the scope of teachers' free speech rights to speak as if private citizens.

Thus the Pickering majority clearly determined that the problem before the Court was to arrive at a balance between the interests of the teacher, as a citizen, in criticizing the administration of public affairs and the interest of the State, as an employer, in promoting the efficient delivery of public services by its employees.18 The Court adopted a citizen and an employer as models of the parties for the purpose of balancing the competing interests. In Connick, this structure was again used, and in addition to this, content of an employee's speech was explicitly linked to "matters of public concern." The connection is repeatedly followed in the subsequent cases,19 so teachers can achieve a protected status only if his words are those of a detached citizen and not as an interested employee.20

In sum, the stable and prevalent principle suggests that a remark or communication of a citizen is presumptively protected by First Amendment, while speech of an employee about internal office affairs may not be.21 Of course, the Court suggested that even if the speech does not touch upon a matter of public concern, employee speech is not totally beyond the protection of First Amendment.22 However, the Connick majority eventually deprived speech addressed to the internal concerns of public employee, which might have been of interest to the public, of consideration for stringent First Amendment protection. The Court justified this paradoxical conclusion with a peculiar proposition that federal courts are not the appropriate forums to review the wisdom of government actions when a public employee speaks upon matters of personal interest to him as an employee.23

The balancing test of Pickering, which was reiterated in all of Pickering's progeny including Connick, has a logical flaw. When determining who should be the models for the competing interests, if a teacher has to be "acting as a citizen," the counterpart should be the State "as a supplier of public services" rather than "as an employer." This is because a citizen has no relationship with the State in regard to employment. If public employees engage in expression unrelated to their employment, their First Amendment rights are naturally no different from those of the general public.24 The Pickering Court also acknowledged this point by stating that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.25 The interests of the State vis-a-vis employees are certainly different from its interests in relation to a citizen.

This view sheds light on the features courts should consider when balancing competing values in Pickering. When a teacher speaks as a citizen, the interests of the school system in limiting his speech should be no more than when any other citizen speaks. By contrast, if a teacher speaks as an employee, the countervailing interests of the school that should be weighed against the teacher's constitutional rights necessarily will include employment-related interests such as discipline, teaching performance, and harmony in the daily work. Thus when speaking as a citizen and not as an employee, teachers should be entitled to the same measure of constitutional protection as enjoyed by their civilian counterparts.26 The Pickering rule is contrary to this approach because the Court did not treat the teacher as a general citizen in its balance. The Pickering Court did "conclude that it is necessary to regard the teacher as the member of the general public he seeks to be."27 Nevertheless, the Court inquired into such employment-related values as maintaining discipline and harmony among coworkers, in addition to any effect of the speech on the actual operation of the school.28 Putting these values on the scales can be justified only if the speech involves more than the ordinary governmental interests and implicates the governmental interest as employer.

If a teacher speaks as an employee, the State has legitimate grounds to invoke its status "as an employer" to bolster its ability to react.29 But when teachers engage in expression as citizens outside the context of employment, the government can not contend that employment-related values should be weighed against teachers' interests in the Pickering balance. Moreover, a teacher airing thoughts only "as an employee" may or may not result in impeding employment relationship in a work place. The Pickering equation did not grasp this clearly and enunciated a standard that has the result of overly burdening teacher in favor of school board. Simply stated, the government gets two bites at the teacher, first as a supplier of public services and again as an employer.

Meanwhile, the relationship between the type of speaker and the content of speech is of public concern or not. Connick follows the presumption that an employee's statement as a mere citizen is inherently concerned with the public affairs, while his speech as an employee may pertain to personal grievances and internal disputes. The counter-poise of this presumption and the possibility has led to the burden being unfairly placed on the teacher to demonstrate that his speech was about a matter of public concern. Since Connick, failing to carry this burden has been determinative in the court decisions.30 Courts hold that full First Amendment protection only attaches to a speech that the teacher has shown to rise to the level of a public concern.31

The content of speech does not determine whether to afford a speaker a particular status, as an employee or as a citizen. In fact the former has no logical relationship to the latter. Courts instead should scrutinize relevant facts to categorize a speaker into one of the two types of status. How can we determine the status of a critical teacher to be that of a citizen or that of an employee? We can find the indirect answer in the Pickering decision. The Pickering Court properly reasoned that the fact of employment in that case was only tangentially and insubstantially involved in the subject matter of the public commu- nication and accordingly regarded Pickering as a citizen.32 Explained more specifically, a speaker is an employee for the purpose of the Pickering balance when he aired his views at the office, or used the resources of the office, or implied a real or symbolic position by representing the office in some way, or took advantage of the authoritative position of an employee.

The Court in Connick properly found that the fact that Myers, unlike Marvin Pickering in Pickering, spoke at her office supported Connick's fears that the efficient functioning of his office was endangered.33 Despite the error of confounding the status of the speaker with the content of the speech in fashioning the public concern test, the Supreme Court rightly reached the conclusion that Myers in Connick34 was not like the speaker in Pickering.35 It is noteworthy to remember that Marvin Pickering wrote a letter to the local newspaper outside the work environment, while Myers designed her questionnaire during office hours and distributed it to coworkers in the office.

Once the status of a speaker is identified, as revealed by the whole record in a particular case, then we may begin to weigh the relevant interests of the parties. If a speaker was neutrally identified as a citizen, only the government's ordinary interests could be arrayed against her. In contrast, if the speaker was neutrally identified as an employee, the government's interests as an employer could be deployed against her. To do otherwise could result in placing an employee in a better position merely by appending a "matter of public concern" to what is an internal grievance. The obverse is also true. We can indirectly infer such a lesson from the Mt. Healthy decision, protected conduct by an employee cannot be considered by an authority in a disciplinary case.36 Therefore, only if a teacher spoke as an employee, could the board of education assert their employment interests when disciplining the teacher.

B. Shifting of the Pivot from Balance to Public Concern and Misunderstanding of Public Concern

In the Connick decision, the Supreme Court initially confirmed the Pickering approach that a public employee does not relinquish the First Amendment rights to speak on matters of public interest.37 Working from the premise that an employee is shielded by the First Amendment, the Court seemingly followed the Pickering calculus in balancing competing values. Ostensibly, the Connick Court paid deep respect to balancing as an important means for resolving the conflicts between interests.

On the next step, however, the Court wrong-footed by establishing the threshold inquiry of whether the employee's statements were upon "a matter of public concern" before balancing the competing interests of the speaker and the state. If the answer to the threshold question is not affirmative, the case is determined against the employee without undertaking the Pickering balance. The threshold standard marked a fundamental departure from Pickering.

The Connick majority found that Myers' questionnaire concerned only internal office affairs rather than touching upon a matter of public concern.38 The Court declared that such speech at stake was not of much constitutional significance, and so the judiciary should not police it. Rather the government as employer should have wide latitude in dealing with it. The Court further stated that when close working relationships were essential to fulfilling public responsibilities, deference to the employer's judgment would be appropriate. As a result, the focus in the analysis moved from Pickering balance to simply whether the speech was of "public concern."

The reason that the Court distinguishes internal complaints from speech on matters of public concern is the recognition that if every employment decisions became a constitutional matter, government offices could not effectively function.39 In addition to this, the Court suggested that free speech rights should not be allowed to become forceful instruments for employees to force agendas upon those responsible for the operation of schools.40 However, the Court used the content test of "public concern" to distinguish appropriate from inappropriate First Amendment cases involving employee speech. The Connick equation states that if the statement is not on a matter of public concern, it is unnec- essary to scrutinize the reasons for the discharge.41 It accordingly afforded the courts the opportunity to decide cases at the threshold test, and wrongly placed the burden affirmatively on the employee to show his speech is protected. 42

The Connick Court began the opinion with a discussion of the problem of arriving "at a balance between the interests of the employee and the interest of the State."43 But the Court eventually moved the focus from balancing to "public concern." The dissenting opinion by Justice Brennan illustrates this shift of the pivot from balancing to public concern. He criticized the majority for not requiring the state to produce any evidence that Myers' conduct had actually disrupted the efficient functioning of the District Attorney's Office.44

The relevance of public concern was not new to the Connick decision. The Pickering Court also discussed rights of citizens to comment on matters of public concern. However, the Pickering Court acknowledged that there is the enormous variety of fact situations in connection to teacher's critical statements and thus it is never either appropriate or feasible to attempt to lay down a general standard by which all such statements may be judged.45 The Court tried only to draw a reasonable conclusion in the specific case that it was confronted with. Thus Pickering did not exalt the term of "public concern" to the extent of controlling the Court's discussion.

In Pickering, the Court focused on exploring what actual interests were involved, and attempted to balance them in a fair way. The Court did not find that the teacher's speech interfered with the discharge of the duties of the school board responsible for maintaining either discipline or harmony among coworkers. In contrast, it ruled that the statements in that case contributed to informed decision-making by the electorate by commenting on "the matters of public concern." The Court indirectly indicated that "public interests" as social profits meant informed decision through open debate. The Court implicitly indicated that such interests of the general public should be added to those peculiar to the teacher when balanced against the countervailing interests of the State in curtailing the expression and securing a controlled school.

The Court in the Pickering decision squarely declared that "the public interest" in having free and unhindered debate on matters of public importance is the great core value behind the Free Speech Clause of the First Amendment.46 The important variable in the Pickering decision was not so much the public concern was addressed in the statements, but rather that the "public interests" of the community were furthered by raising the issue. The Pickering Court focused on the public interest created by Pickering's letter, and finally held that public interests, in alliance with the private interest of the teacher to express himself, outweighed the government's interests to safeguard the school system.

Free speech right to express oneself without fear of government retaliation is a fundamental condition of democratic society, and unconstrained discussion concerning matters of public importance is an essential element of the public discourse.47 Therefore when public interest is generated by speech, the Pickering balance moves from one formula (a speaker's private interests versus governmental interests) to another (public interests and a speaker's private interests versus governmental interests). Finally the role of "public concern" lies not in restricting the scope of teachers' free speech rights when it is not addressed, but rather in illuminating an additional ground for giving them heightened protection when it is touched. The crucial fallacy of the Connick decision is that it applied the standard to close the door to inquiry.48 The result has been that the public concern test has been used to cut back on the protection of speech.49

The Connick majority stood on the unacceptable premise that only when an employee's speech contributes to the public interest, the employee deserves constitutional protection. But the fundamental human right to express oneself does not exist for the protection of only "worthy" speech that "contributes" to society. All speech is presumptively protected, and only if the government can demonstrate an overriding interest, may it be burdened. Moreover, the onus is on the government to show the harm, not on the speaker to demonstrate its "worth." The First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social change desired by the people.50 The regulation of teacher's critical speech cannot be justified simply because the speech looks abusive or repugnant or unpopular. According to a change of season, speech that once was considered destructive by school administration could be welcomed as a constructive idea for the development of education. The marketplace of ideas in the community has a self-controlling mechanism, which eventually distinguishes a worthy speech from a worthless speech. The government is not the first-hand agent responsible for regulating harmful remarks unless they are likely to cause material and substantial effects. Finally a private grievance, not initially about public concern, could formulate a public concern (i.e. whistleblowing), and lead to more informed decisions and democratic control over government excess. Simply put, aggressive speech related to a private employment grievance may generate considerable public interest and eventual benefits even if it disrupts normal operations of the public office.

By using the "public concern" test to insulate speech (that would otherwise be subject to the Pickering balance) from the ambit of the First Amendment, government gains an unreasonable presumption to discipline an employee for any type of critical speech that may routinely take place in the workplace.51 When speech concerns an internal affair rather than directly addressing a matter of public concern, the Connick decision gives an enormous advantage to the view of the supervisor. It has resulted in improperly restricting teachers' public speech as well as creating a chilling effect on teachers. It is much truer because the meaning of the term of "public concern" is still elusive, and it is not easy to draw a line between public concerns and private disputes.52

C. Insignificant Utility Value of Public Concern

In the Connick decision, the Court drew a sharp line between speech that touches upon a matter of public concern as citizen and speech over a private grievance as employee. The Court held that whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.53 This means that the factors which define "a matter of public concern" are not confined to the abstract contents of the speech, but, rather, encompass the context in which the speech was made. Moreover, the Court depicted that the inquiry into the protected status of speech is one of law, not fact,54 Finally, the Court put the burden on the employee to show the speech related to a matter of public concern.

In Pickering, the Court focused on the contents of the speech. In Givhan v. Western Line Consolidated School District,55 the Court brought additional factors to the Pickering balance. In Givhan, the factual grounds were different from Pickering in that the teacher expressed her views in private encounters rather than in a public venue. The Court stated that when a government employee personally confronts her immediate superior, the employing agency's institutional efficiency may be threatened not only by the content of the employee's message but also by the manner, time, and place in which it is delivered.56 Even though the Supreme Court in Givhan added several factors to the Pickering model, the two cases followed the same path, in that they applied such factors for balancing conflicting interests at stake. However, the Connick decision strayed from this route because the Court employed the same factors, even if the words are slightly modified,57 to decide whether the speech addressed a matter of public concern, rather than in later balancing of interests.

Following Connick, the lower courts have seen the Connick decision only as a refinement of Pickering for examining disputes over a teacher's public speech in the school setting.58 However, this view of Connick radically and misleadingly changes the Pickering framework. By creating the dichotomy between private grievance and public concern at the threshold, the Court essentially held that if a speech can't be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for the court actually to scrutinize the reasons for the discharge.59 If speech does not meet the threshold requirement, it is not entitled to constitutional protection in the absence of the most unusual circumstances.60

But this view is neither reasonable nor feasible. At best the concept of "public concern" can be treated as shades on a spectrum, not as black or white category. The Fifth Circuit Court of Appeals illustrated this point:

Because almost anything that occurs within a public agency could be of concern to the public, we do not focus the inherent interest or importance of the matters discussed by the employee. Rather, our tasks are to decide whether the speech at issue in a particular case was made primarily in the plaintiff's role as citizen or primarily in his role as employee.61

The existence of an element of personal interest on the part of an employee in the speech does not prevent finding that the speech as a whole raises issues of public concern.62

The Connick Court explained that the subject of Pickering's letter was "a matter of legitimate public concern" upon which "free and open debate is vital to informed decision making by the electorate."63 The Pickering letter, however, was informed by his status of employee and commented critically, on internal matters. A matter of public concern and an internal, possibly sexual, affair may intertwine sophisticatedly in many cases of teacher's speech. Putting Pickering's letter on one side or the other is a difficult task:

Do you know that those letters had to have the approval of the superintendent before they could be put in the paper? That's the kind of totalitarianism teachers live in at the high school, and your children go to school in. But $20,000 in receipts doesn't pay for the $200,000 a year they have been spending on varsity sports while neglecting the wants of teachers. To sod football fields on borrowed money and then not be able to pay teachers'salaries is getting the cart before the horse. I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. 64

Even an employee's private grievance, if it was directed at the government or the supervisors, is bound to criticize government policies or government actions. Even a private complaint may pertain indirectly to the public policies that are of public importance, and so it can have a possibility to lead to the public discourse on the matters. The term of "matters of public concern" should always be interpreted as open ended rather than a closed set of subjects.

If speech cannot be neatly fit one category (public concern) or the other category (private interest), it is inconsistent with the protection of free speech rights of employee to require him to pass a threshold test that the speech should reflect on matters of public concern. Though speech could have become a subject of public concern, it cannot be accorded protection under Pickering balancing if the threshold test is not met. To escape this trap, the Connick Court itself pursued Pickering balancing to answer the threshold requirement. The Court examined the context of the speech as an additional factor, not present in Pickering. Actually, the context of speech (so important in Connick) is only another way of representing related interests that Pickering scrutinized in its balance. The threshold inquiry should only be viewed as a provisional and not determinative conclusion. Moreover, the burden should be on the state to show, in this provisional calculus, that the speech in question has little likelihood of becoming a matter of public concern.

Even if Connick seemed to establish a threshold inquiry into whether the speech related to a matter of public concern, the Court could not help handling the determination of public importance by counting on the Pickering balance in the practical application of the test. In other words, the concept of public-concern speech could not lead an independent life without the help of Pickering. In Connick, the Court recognizes this. The Court initially focused on the context, especially the subjective private motive of the speech. But the Court then applied an objective criterion when it held that one question (the eleventh) in Myers' questionnaire did touch a matter of public concern.65 If the Court emphasizes the context of employee dissatisfaction from which the questionnaire arose, the eleventh question should not be treated separately; it should be ignored. As a result, the Court's decision was flawed by weighing one factor twice, the context in which a statement is made; first in determining whether the speech addressed a matter of public concern and, then, in deciding whether the statement adversely affected the government's interest as an employer.66

There is another point to be gained from reading the Connick decision carefully. The Court held that:

a questionnaire not otherwise of public concern does not attain that status because its subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest.67

Context is not definite, and is likely to change at any time. Moreover, topics of public interest may be readily connected to each other in the community rather than abstractly exist in separate environment. If the Court seeks value in the virtue of public concern, because free and open debate is important in our community,68 it is not reasonable to restrict artificially and excessively the range of public concern. Actually open discussions by informed insiders who have no fear of retaliatory dismissal may enable the government to evolve and change for the good more efficiently.69

Following Connick, the Fifth Circuit Court of Appeals stated that the mere fact that the topic of the employee's speech was one in which the public might or would have had a great interest is of little moment because almost anything that occurs within a public agency could be of concern to the public.70 If courts adhere to this reasoning, a teacher's critical public remarks about superiors would not be protected until after general public had already formed similar opinions, and thus a teacher's critical remarks became redundant. If so, teachers would be chilled from starting open debate. Note that in Pickering, the teacher's letter was written after the second tax referendum was defeated and the letter could not have any impact on whether the revenue proposal would be passed or not.71 Was the First Amendment Clause written to protect only such kind of powerless speech as in Pickering? Instead, the free speech clause displays its essential worth when the subject of teacher's critical remark has not yet become a matter of public concern, when it most looks like a private complaint. When a teacher's speech duplicates the opinions that had been spoken by many citizens in the community, at that time he would not be pressured to refrain from speaking them, and also he would not feel the fear of disciplinary actions without the help of the First Amendment.

In light of this, a teacher's speech should never have to occur against a background of extant public debate about the administration of government. Teachers should have no disincentive about opening a matter before the public even when the general public seems disinterested or uninformed. Especially, as the Pickering decision acknowledged, teachers, as a class, are the members of a community most likely to have informed and definite opinions as to how the schools should be operated.72

Further, a marketplace of ideas is not only formed around the school system, but also within the school system itself. Internal affairs also should not be arbitrary or go without criticism from professional employees. Moreover, given that important subjects that may have considerable effect on the general public are rarely known outside the schools, the critical speech of teachers as employees deserves full protection under the First Amendment. Therefore, there is no reason that the meaning of the "public" in a matter of public concern should be limited to the general social public.73 It can mean in some situations those teachers inside the school system.

III. CONCLUSION

It seems that the legal framework for the regulation of teachers' free speech in the school setting is well settled since the Pickering calculus and the Connick principle have been established. Presently, the courts try to reach a conclusion relying on the two criteria of "public concern" and "balancing." However, with the lack of a consistent understanding of the balancing test and the value of the term of "public concern," the courts have narrowed the proper scope of teachers' free speech rights under the First Amendment.

The balancing frame employed in Pickering is flawed because it allows the state to conflate its interests as government and employer on the scale. The balance should be between the interests of school board as an employer and the interests of a teacher as an employee rather than between interests of the state and interests of a citizen. The state should not be allowed to double up on the employee. The threshold test set forth in Connick also has a fault in that it focused on matters of public concern apart from balancing. However, the concept of public concern paradoxically cannot lead an independent life without the help of Pickering's balance. Whether the subject of speech relates to a matter of public concern can be only answered through Pickering balancing which should not occur until first satisfying the threshold question.

The term "matter of public concern" has been too narrowly assessed by the courts. It should be regarded as an additional supportive ground for the protection of a teacher's free speech right rather than as a reason for restricting the right prior to balancing the relevant interests. The public interest generated by speech touching on a matter of public concern should increase the constitutional value of the speech than being a precondition for protection through balancing.

While the concept of public concern plays a transcendent role as a standard for treating teachers' public speech in the courts, the Tinker principle was swept behind the screen. Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to the freedom of expression. The prohibition of expression can be sustained only when the speech would materially and substantially interfere with the operation of a school.74

Finally, the courts should return to Pickering's principle of balance as the center of analysis in determining the scope of the Free Speech Clause for public employees, with the weight placed properly on the balance scale. Then the scope of particular free speech rights could be investigated in a fair framework. A favorable advantage to the school authority's judgment in punishing a teacher's speech can be no more supported than an unconditional favorable advantage for the teacher.75