Of Public School Teachers, Artistic Expression, and Topless Photos

CNN.com had a story yesterday about a public school art teacher in Austin, Texas, an excellent teacher by all accounts, fighting for her job after topless photos were discovered of her on the internet by students and colleagues (photo of the art teacher, Tamara Hoover, to the left from Celestadanger.com via the Austin American-Statesman).

What makes this case interesting is that Hoover is claiming that she was engaging in a form of artistic expression and thus should be protected by the First Amendment from being fired by the school district. In this regard, Hoover has stated:

I'm an artist and I'm going to participate in the arts . . . . If that's not something they want me to do then I want to be told that. I don't feel as if I was doing anything that was beyond expectations.

In fact, this is not as novel as a claim as it might seem.  Courts have considered in a number of cases whether the Connick/Pickering framework for public employee free speech equally applies to the engaging in expressive activities or associations. The consensus seems to be that as long as the expressive activity or association has some speech elements, and is not just a pure association, the same Connick/Pickering test applies to the individual claiming protection for her expressive conduct.

What that means in this case is that even if the art teacher can claim she was expressing herself of a matter of public concern (which she might be able to do if she can claim that she was making a statement about artistic freedom or censorship), the Pickering balance between her First Amendment interest and the interests of the school district in maintaining a disruption-free educational environment would probably favor the school district given the amount of dispruption these photos are likely to cause in her high school community.

And even if you believe like me that there should be separate protection for public employees' right to decisional non-interference in private affairs after Lawrence under substantive due process, the amount of disruption her off-duty conduct has caused at her workplace will still probably cause her to lose the modified Pickering balancing test that I set out for these constitutional rights in my recent paper.

PS