The U.S. Court of Appeals for the Third Circuit recently issued a decision that draws a line in the sand for purposes of the First Amendment. Montanye v. Wissahickon School District, 2007 WL 541710 (3d Cir. Feb. 22, 2007). The court makes clear that the First Amendment does not cloak all conduct with protection. Not every action is constitutionally protected just because someone intends to express an idea. An effort to convey a particular message must be proven and the likelihood that others would understand the message must be great.
Montanye was a ninth-grade teacher who was concerned about the mental health of one of her students. When the student expressed suicidal thoughts, Montanye shared her concern with the student's mother and even attended some therapist sessions with the student (with the permission of the student and her mother because the student would only go if her teacher accompanied her).
The school district, upon learning about this, was worried about the propriety of the Montanye's interactions with the student. After a hearing, it issued a letter, which the teacher said was a "constructive discharge letter." Among other things, it instructed Montanye that, if she "engages in any conduct outside the school or outside her status of a teacher with any student or parent, she is to notify the school and advise the parent that she is doing so strictly in her personal capacity."
Montanye filed a lawsuit, claiming that her right to expressive conduct under the First Amendment was violated and that the federal Rehabilitation Act was violated. She alleged that what she did amounted to protected speech and that the school wanted to chill her speech and punish her for assisting special education students.
The federal trial court dismissed her claims, and the appellate federal court affirmed. Both claims were dismissed for the same reason. That is, while Montanye's actions might have involved a "kernel of expression", her actions in assisting the student were not "expressive or communicative." Montanye argued that her speech and conduct was constitutionally protected because it concerned a matter of great public importance in that she was helping the student achieve a healthy life and giving her educational and emotional support. But the court rejected the argument, explaining that it was insufficient to convey a particularized message or to be understood as conveying such a message.
This case is a victory for schools (and employers, generally), which might have some trepidation about taking action they believe to be best for fear of treading upon First Amendment rights. However, practically speaking, how it will play out in the halls of our schools remains to be seen.