As societal and political tensions remain high, Districts have to walk the balance beam of respecting employee’s first amendment rights on one hand, and avoiding controversy in communities on the other. While staff don’t surrender all of their first amendment rights by working for a school district, schools are still able to stop teachers from using their position as a platform for politics, with support from state ethical requirements as well as 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.
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). 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 at 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.
But Don’t Engage in Viewpoint Discrimination. . .
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 Nebraska, certificated employees are governed by Rule 27 of the Nebraska Department of Education. Teachers and administrators who violate Rule 27 risk losing their teaching certificate, among other possible discipline. Several of the standards in Rule 27 prevent a staff member engaging in political or partisan activity at school:
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 hold 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).
Nebraska’s Political Accountability and Disclosure Act
If professional consequences weren’t enough, any school employee who engages in political activities 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.
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.