While schools are on the hot seat across the United States due to coronavirus lockdowns and critical race theory (CRT) leaks, Philadelphia City School District is deciding whether it will introduce what one board member calls “a gag order,” effectively forbidding its 20,000 employees from speaking to the media without district approval.
The district’s proposed policy was discussed in a November committee meeting, as reported by The Philadelphia Inquirer. It states that “staff members shall not give school information or interviews requested by news media representatives without prior approval of the Office of Communications.”
The proposal was discussed along with 13 other topics, some of which relate to student searches, immunizations, and weapons. Staff members, who are represented by The Philadelphia Federation of Teachers (PFT), would also be barred from circulating any pictures taken inside the school. Board member Mallory Fix Lopez, who was appointed by Philadelphia Democrat Mayor Jim Kenney, referred to the proposal as a “gag order” and an example of how the district is “micromanaging” and distrusts employees.
District spokeswoman Monica Lewis claimed the proposal is “standard operating procedure for organizations everywhere” and would be implemented to depict the school district “in the best possible light.” Lewis has also attempted to claim the policy would not be introduced to stunt media and district collaboration, but centralize communications through its office.
Take Your Paycheck, Now Shush
Employees in Philadelphia’s district, the eighth largest in the country by student enrollment, are currently allowed to speak with media freely—although they are encouraged to contact the communications team for guidance. The current news and media relations policy was adopted in Oct. 2011.
According to the district’s policy, “[r]epresentatives of the local press, radio and TV are an important link in communications between school and community” and “[m]aintenance of good working relationships with media representatives is essential to meeting the objectives of the school-community relations program.”
One can only wonder how the proposal fits with this declared sentiment. It is unclear why the taxpayer-funded district is attempting to force employees to go through an official approval process for communications. Speculation abounds, but the district insists the move is uncontroversial and merely for structural purposes.
Still, it is notable that there have been a significant number of CRT leaks coming from the Greater Philadelphia area, in addition to tension between the district and its employees regarding coronavirus re-opening policies. Back in February, teachers refused to do their jobs and halted in-person schooling for thousands of families.
There has also continued to be a great deal of reporting on the schools’ asbestos and mold crisis, which the teachers union brought to the press. Schools have dealt with water damage, fine dust, and bubbling plaster, with collapsing classrooms becoming the norm.
The average school in the city is 75 years old. The district claims it lacks financial resources to address these basic problems, but it spends approximately twice the national average per pupil in public schools—at more than $26,000 per child per year. In addition, it has received millions in funding from federal COVID programs while the schools have been often closed.
“Philadelphia public schools are failing due to a lack of accountability and competition, not a lack of funding,” said Joe Gale, a commissioner of Montgomery County and a Republican candidate for governor. “Silencing and censoring the voice of workers is never the solution to the problem. This gag order is another example of a growing trend in which government is trying to suppress any criticism of the status quo when it comes to public education.”
First Amendment Implications
Frank LoMonte, a law professor at the University of Florida and director of the Brechner Center for Freedom of Information, told the Inquirer the policy would be “an astonishingly unconstitutional thing to do” and that “Dozens and dozens of federal courts have struck down policies exactly like this one,” regardless of the commonality of such situations.
Other legal experts indicated to The Federalist that the school district’s move might be unconstitutional, although it is complicated. Tuan Samahon, a constitutional lawyer at Villanova University, referenced the 2006 U.S. Supreme Court case Garcetti v. Ceballos. The case illustrated that the First and Fourteenth Amendments protect local government employees only when they are speaking as private citizens.
“If a government employee’s speech is part of their official job duties, their employer certainly can discipline them for their speech,” Samahon said. “But official duties can extend even beyond their official job descriptions. The difficulty, then, is differentiating when a public employee is speaking as a private citizen versus speaking as a government employee. They are protected in doing the former but not the latter.”
Samahon noted that “prior restraints,” a government requirement forcing one to get permission before speaking, is a “disfavored form of censoring.” Given this, there could be legal difficulty in introducing the media relations policy.
“They face a heavy burden of presumed unconstitutionality,” he continued. “So, a city’s procedural requirement that a teacher has to clear answers to all media inquiries with a main office is separately problematic from any actual substantive censorship that might result.”
GianCarlo Canaparo, a legal fellow at The Heritage Foundation, said courts routinely strike down comparable gag orders. He outlined how the 1968 Supreme Court case Pickering v. Board of Education is justification for this precedent.
“Pickering held that teachers have the right to speak out about issues that concern the public even if that includes criticism of school board policies,” said Canaparo. “That freedom is not, however, unlimited.”
Canaparo also said there could be First Amendment implications given that he thinks teachers typically speak to journalists as private citizens.
“Teachers are not free to knowingly make false statements, and any statements they make pursuant to their professional duties are not protected,” he continued. “But most teachers don’t speak to the media as part of their professional duties. When they speak out, they likely do so as private citizens, in which case the First Amendment protects them fully.”
Speech codes have been introduced or attempted in other U.S. school districts. For instance, Loudoun County School District in Virginia discussed a proposal last year that would have prohibited employees from voicing concerns with its racial discrimination plan. The policy was revised after pushback from the local teachers union.
“It is beyond concerning when our school systems try and violate the First Amendment rights of teachers,” Ian Prior, executive director of Fight for Schools, a Loudoun County, Virginia-based group, told The Federalist. “This also violates the First Amendment listeners rights of parents, who in many cases rely on those teachers to tell them what these school districts are mandating they teach our children.”
Another similar situation that garnered national attention took place in New Mexico. In 2016, the state’s public education department eliminated a 2009 gag rule put forth by former Democrat Gov. Bill Richardson that barred teachers from making “disparaging” remarks about standardized testing. This came on the heels of The American Civil Liberties Union of New Mexico filing a lawsuit.
The Philadelphia district’s proposal has been rebuked by various groups, such as the left-leaning PFT and its national branch, The American Federation of Teachers (AFT). Jerry T. Jordan, president of the district’s union, called the proposal “outrageous” and “an astonishing attempt to silence school staff.”
It's an outrageous proposal, and this union will not stand for it. @AFTunion #phled https://t.co/QxwG9SE9vA
— Jerry T. Jordan (@jerrytjordan) November 8, 2021
Randi Weingarten, president of AFT and a critical race theory backer, said, “We haven’t seen language this restrictive in decades … This is censorship.”
Other sources familiar with the situation expressed to The Federalist their disapproval with the proposal. Spokeswoman Allie Carroll for the Pennsylvania Republican National Committee (RNC) said that “parents deserve to know what their children are learning in the classroom.” Carroll did not respond to a follow-up email asking whether the RNC would publicly oppose the proposal should it be implemented.
Elana Fishbein, founder of the new statewide education advocacy group No Left Turn In Education, described her discontent with district spokeswoman Lewis’s claim that the media relations proposal is “standard operating procedure.”
“Apparently silencing parents, teachers, and the public in general are ‘standard operating procedure’ for the Philadelphia school board and Mayor Kenney,” Fishbein said. “This is an authoritarian move to silence school staff and prevent them from exposing the many failures of the school system. Teachers in Philadelphia often have no other remedy but to alert the media.”
Lewis defended the proposal to The Federalist in an email, claiming it is aimed to “guide and support staff.”
“The intent of Policy 911 has never been, nor will it ever be, to prohibit staff from speaking to the media,” said Lewis. “The policy is intended to provide staff with guidelines on how to engage with members of the media in order to maintain safe learning and working environments for students, staff, and school communities. Based on initial feedback, the policy is being further revised to reflect and clarify this sentiment.”
The spokeswoman also denied there might be First Amendment implications.
“The district fully understands and supports staff members’ First Amendment rights and in no way wishes to stifle the voice of any employee who wishes to share their personal views or opinions on a given matter as long as it does not otherwise violate other existing policies or administrative procedures or law,” she said.
A teacher in Lower Merion School District, which is located in Montgomery County, told The Federalist he thinks the proposal has come about because “the central administration wants to control the narrative when it comes to curricular changes.”
The teacher thinks the policy not only violates the First Amendment but also the Whistleblower Protection Act of 1989. The act protects federal government employees from retaliation for disclosing illegal or dishonest activities occurring within the government.
“They should just stop the policy now while they have a chance before it ends up in court, then they will lose on First Amendment grounds, especially if the ‘said teacher’ seeks the press when they aren’t in school,” said the employee, who wishes to remain anonymous for fear of employment reprisals. “I believe it even violates the Whistleblower Protection Act of 1989.”
While some associate Philadelphia’s move with an attempt to combat reporting on race-based curricula, the teacher said, “Be leery of tethering CRT with this new egregious attempt by this school district to quell employee dissent.”
Prior, whose group has been working to combat CRT in public schools, said differently.
“There needs to be an immediate and concerted effort to bring the hammer of litigation against these schools for such blatant attempts to subvert the Constitution and hide from parents what is going on in the schools that they are paying for and trusting with their children’s education,” Prior said.