Weinstein, twitter trolls, Title IX, gender roles
Border wall, TikTok, Hong Kong revolution
Giuliani, no more guns, Smoking starts at 21,
Court seats, legal weed, Trump tweets NO COLLUSION!
Primaries, Bernie Bros, Pope Francis, Biden Woes
Kim Jong Un, Erdogan, Obama said "Yes We Can"
Free college, deep state, people using blackface?!,
Pocahontas, Mayor Pete, we're at war with Iran!
We didn't start the fire
It was always burning
Since the world's been turning
We didn't start the fire
No we didn't light it
But we tried to fight it
We didn’t start the fire, but it's never burned hotter! Over the next year, our country will debate articles of impeachment, a presidential election, and whatever else 2020 throws at us. During these passionate times, it is important that school staff remember the limitations and obligations they have when fulfilling their duties. This means staying on-task with students, rather than unnecessarily spending valuable instructional time expressing political views that aren’t part of your curriculum or that particular class. This also means that when political topics are appropriately a part of classroom discussions, teachers must remain professional, respectful, and educational. School employees also risk serious consequences under state law by inappropriately engaging in partisan activity while performing their duties. Finally, the First Amendment doesn’t always protect speech outside of the school environment, either, so educators must be responsible when using social media.
I’m Sorry. . . I Thought this was America?!
This is America, and we all have First Amendment rights. In fact, the First Amendment rights of educators are more robust than those of private employees. This is because public employers are “state actors” governed by the First Amendment, unlike private employers. Schools must respect their employees’ rights to speak “as a private citizen” on “matters of public concern.” You’ll recognize those phrases from iconic cases like Pickering, Garcetti, and Connick.
However, “when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. . . When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410 (2006).
This issue most recently arose in Kluge v. Brownsburg Cmty. Sch. Corp., 2020 U.S. Dist. LEXIS 2672 (S.D. Ind. Jan. 8, 2020). In 2017, the Brownsburg High School implemented a new policy that allowed transgender students to identify their preferred names and pronouns, and required employees to refer to students in line with those preferences. Shortly thereafter, Mr. Kluge, a high school music and orchestra teacher, informed the superintendent that he would not abide by this directive because it conflicted with his religious beliefs against confirming gender dysphoria.
Mr. Kluge was instructed that he had three choices: (1) abide by the policy and refer to students by their preferred names, (2) resign, or (3) be terminated without pay. Kluge resigned, and then sued arguing that the school violated his First Amendment rights to freedom of religion and speech. The court disagreed, noting that the school may regulate a teacher’s interactions with students inside school and in the context of the school day or school activities. Mr. Kluge’s First Amendment rights did not extend to his classroom interactions with students, and the school could require him to refer to students by their preferred names.
A Two-Part Test
Courts apply a two-part test to determine if a public employee’s speech is protected by the First Amendment. The first step really asks 2 questions: did the employee speak (a) as a private citizen (b) on a matter of public concern. If the answer is “no” (to either inquiry) the First Amendment does not protect the employee’s speech. If the answer is “yes” (to both inquiries), the First Amendment may protect the employee’s speech, and we turn to the second part of the test.
To determine whether an employee is speaking as a private citizen, the fact that an employee is at the workplace is not necessarily dispositive. Instead, the court will look to whether the employee spoke pursuant to their official duties (which is, of course, more likely in the workplace). Courts generally construe a teacher’s “official duties” as applying to all interactions with students and colleagues in relation to school matters or activities. Under the Garcetti case, if an employee is speaking pursuant to his or her official duties the speech is not protected, in large part because the employee is not speaking as a private citizen. Nebraska has state statutes which affirm this concept for public employees.
To determine whether an employee is speaking about a matter of public concern, courts look to the “content, form, and context” of the statement, along with the employee’s motive in making the statement. Connick v. Myers, 461 U.S. 138 (1983). Speech related to a subject that would be of public concern is not protected if the expression addresses only the personal effect upon the employee, or if the only point of the speech was to further some purely private interest. This means that if an employee speaks out of private interest about a personal grievance with school administrators, the speech is not protected under the First Amendment. This is true even though the public has an interest in the administration of the school district, and even if the statement is not made pursuant to the employee’s official duties.
If an employee is speaking as a private citizen regarding a matter of public concern, a public employer can only take action against the individual if it has an adequate justification for treating the employee differently from any other member of the general public. Courts will balance the school’s interest in maintaining order and efficient operations against the liberty interests of the employee to determine if an adequate justification exists.
Nebraska’s Rule 27
Certificated employees in Nebraska must also be mindful that adverse action can also be taken against their certificate for inappropriate speech.
Rule 27 of the Nebraska Department of Education imposes standards for professional practices of all certificated employees. Several of these standards could apply in situations where a staff member inappropriately engages in political or partisan activity, including:
The educator shall permit the student to pursue reasonable independent scholastic effort, and shall permit the student access to varying viewpoints. (004.03A).
The educator shall not deliberately suppress or distort subject matter for which the educator is responsible. (004.03B).
The educator shall not use institutional privileges for private gain or to promote political candidates, political issues, or partisan political activities. (004.04B).
The educator shall, with reasonable diligence, attend to the duties of his or her professional position. (004.04F).
The educator shall use time on duty and leave time for the purpose for which intended. (004.06G).
The educator shall allow others who old and express differing opinions or ideas to freely express such ideas.
The educator shall not show disrespect for or lack of acceptance of others. (005.09C).
Educators in other states must also be aware of their state’s licensure laws related to professional conduct. You should check for relevant information from both your state education agency and any applicable state laws.
Nebraska’s Political Accountability and Disclosure Act
If professional consequences weren’t enough, those inappropriately engaging in political activity while working for a school or using school resources (like their school-issued computer) can violate Nebraska’s Political Accountability and Disclosure Act. Section 49-14,101.02(2) makes clear that a school official or employee may not use personnel, resources, property, or funds under his or her official care and control for the purpose of supporting a political candidate or a ballot issue. “Candidate” and “ballot issue” are defined broadly and include most candidates for state and federal office and issues that may show up on the ballot. The Nebraska Accountability and Disclosure Commission (Commission) has explained that this means a school employee may not engage in political activity during office hours or while otherwise performing their duties. The Commission has fined school employees and other public employees for violating these prohibitions.
Again, Nebraska is not alone in having a set of state laws which limit public employees’ ability to use public resources in support of their personal political views. Educators who are not in Nebraska should familiarize themselves with their state’s laws on political accountability and the use of public time and resources.
Conclusion
Schools can take disciplinary action against any employee for engaging in speech that is not protected, including political speech that may show up in the classroom or on social media. However, the laws and circumstances surrounding these types of First Amendment issues are rarely clear. The Nebraska Department of Education can also take disciplinary action if a teacher’s speech violates Rule 27’s standards for professional conduct. Finally, school employees can be fined or otherwise sanctioned by the Commission for using school resources to further partisan goals.
We know you didn’t start the fire, but if you need help trying to fight it, we recommend you call your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan. If you want to reminisce about Billy Joel, Ho Chi Minh, or the Rock and Roller Cola Wars with someone who was actually alive when the song was released, you’re limited to Karen, Steve, Bobby, or Coady.