As societal and political tensions remain high, Districts have to walk the balance beam of respecting employee first amendment rights on one hand, and avoiding controversy in communities on the other. Staff don’t surrender all of their first amendment rights by working for a school district, but schools are still able to stop teachers from using their position as a platform for politics, with support from ethical regulations and constitutional case law.
Free Speech For Me or For Thee?
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).
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.
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).
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.
But Don’t Engage in Viewpoint Discrimination . . .
Ok, so let’s assume there’s a situation where the employee is not making the speech as a private citizen, but rather while they are at work (think rainbow flags or bible verses). This may fail the test above, but it does not give a district carte blanche authority to regulate the speech in any way it wishes. Most notably we see this come up when Districts have pressure to eliminate certain instances of teacher speech while allowing others. This is considered “viewpoint discrimination” (i.e. “we are only regulating this speech because we don’t like the opinion”) and is effectively the worst free speech offense a governmental entity can commit. You can ban all personal decor by teachers in their classrooms, but you can’t ban only decor espousing a certain message. See United States v. Alvarez, 567 U.S. 709, 752, (2012).
Changes Coming?
If you’re a nerd like us, you may have been paying attention to the oral arguments this week in Kennedy v. Bremerton School District. Kennedy was a football coach who would lead players in prayer on the field after games. The school eventually placed him on leave after he refused to comply with the District’s requests to halt his actions on the field.
This case may open the door for employees of districts to be more assertive of their first amendment rights. We’ll be keeping close tabs on this case when the Supreme Court issues its decision.
What Were You Saying About Ethical Regulations?
In South Dakota, the teachers’ code of professional ethics is found in article 24:08:03:02 of the South Dakota Code. That law requires all teachers and education service providers to:
Take precautions to distinguish between their personal views and those of the local school district or governing body (24:08:03:02 (1));
Not interfere with a colleague's exercise of political and citizenship rights and responsibilities (24:08:03:02 (3)); and
Not exploit the local school district or governing body to promote political candidates or partisan political activities. (24:08:03:02 (5)).
The state attorney general has further indicated that individuals who engage in political advocacy while they are working for schools or other government agencies also run afoul of the law. In Official Opinion No. 88-28, Expenditure of Public Funds on Election Issues (June 29, 1988), the South Dakota Attorney General warned that public employees may engage in political advocacy “strictly in their individual capacities as private citizens.” The opinion continues that public employees engaging in political advocacy at work “raises serious constitutional questions.”
Conclusion
Politics are messy, and schools are already messy enough places without them. If your district wants to ensure staff stay above the fray at work, make sure you’re consistent in your enforcement. If your district is facing difficult First Amendment issues, don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000.