On January 20, 2021, Joe Biden will be sworn in as the 46th president of the United States. Some education professionals will think this is a cause for celebration while others will experience deep concern. In our country -- like our profession -- people of good will can and inevitably will disagree about partisan politics. However, when you are acting in your role as a school employee or representative, you must scrupulously avoid using your position as a platform for your politics.
Professional Ethics Governing Educators
In both Nebraska and South Dakota, education professionals are bound by codes of ethics which prevent public schools from being used as platforms for political causes.
Nebraska’s Rule 27
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).
South Dakota’s Code of Professional Ethics
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)).
Other States
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.
Other Laws Limiting Teachers From Engaging in Political Activity in the Classroom
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.
South Dakota’s Attorney General Decision.
In South Dakota, the state attorney general has 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.”
Other States
Again, Nebraska and South Dakota are not alone in having state laws or administrative opinions that limit public employees’ ability to use public resources in support of their personal political views. Educators in other states should familiarize themselves with their state’s laws on political accountability and the use of public time and resources.
Wait -- I have First Amendment Rights, Don’t I?
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).
Dodge v. Evergreen Sch. Dist. No. 114, 2020 U.S. Dist. LEXIS 135581(W.D. Wash. 2020) involved a teacher who was attending an inservice when no students were present. While walking from his car to the building, the teacher wore his MAGA hat. He took it off when he got inside the building. After the training, the teacher’s principal expressed concerns about his MAGA hat. The next day, the teacher again wore his MAGA hat while walking to and from his vehicle at an off-campus training. When the principal next saw the teacher, she approached the teacher and exclaimed: "OK, what is the f***ing deal with you and your hat!" The principal then berated the teacher for 15 minutes, calling him a "racist," "bigot," "homophobe," "liar," and "hateful person." The principal told the teacher to get union representation because he "would need it" next time they spoke.
The teacher sued, claiming that the principal had violated his first amendment rights to free speech. The court held that the principal’s isolated tirade did not constitute a "campaign of harassment," but that her alleged threat encouraging the teacher to seek union representation suggested future discipline if he continued wearing the MAGA hat.
The court included this caution: "As a final note, these are trying times and [the teacher]'s allegations highlight the importance of courtesy between those who disagree politically. The Court urges the parties and anyone else reading this to be respectful in all things."
Note that the teacher in this case was not wearing his MAGA hat in the presence of students. As we’ve noted above, if he had done so, he may have exposed himself to legal liability separate and apart from his confrontation with his principal.
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 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, we turn to the second part of the test. 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.
Conclusion
We know that political feelings are running high, fraying nerves that are already rubbed raw by COVID. If you need to vent, by all means, open your window and shout “I’m mad as hell and I’m not going to take it anymore.” If you want to celebrate, crank the tunes, pop the champagne and dance around your living room in your underwear. But the place to express your political beliefs is your private life -- not your classroom, not your school-affiliated Twitter account and not even in the teachers’ lounge. If your school district has questions about what is acceptable political speech in a school context, contact Karen, Steve, Coady, Jordan or Tyler. (Don’t bother Bobby for a few days. He is busy celebrating the birth of the newest KSB kid, Tylie Kenna.)