Employee First Amendment Rights

As an administrator, you know that the First Amendment’s free speech clause intersects with your work. Teachers and school employees do not shed their constitutional rights at the schoolhouse gate, to borrow a phrase from a famous 1969 U.S. Supreme Court case, Tinker v. Des Moines. Although Tinker involved student free speech rights, its underlying principles also help guide cases involving school employees.

Public employees maintain certain constitutional protections. Teachers and administrators have a right to speak about issues of public interest without reprisal from their employer—the government (school district). That said, those rights are not absolute.

Because federal and state laws (legislative and court-made) are changing rapidly, it is worth revisiting the subject of the First Amendment rights of school employees. Here are some guideposts to help you navigate these situations, if they arise.

Speech Regarding Matters of Public Concern

The Supreme Court case Pickering v. Board of Education (1968) first addressed the question of free speech rights of teachers. It remains the starting point of any analysis on employee protected speech.

In Pickering, a teacher wrote a newspaper opinion letter critical of the school board’s fiscal policies, and the school board took an adverse employment action against them because of it. In finding for the teacher, the court noted that teachers may speak out about matters of public concern as citizens, and that speech is protected from retaliation so long as the speech does not substantially disrupt school district operations.

In Garcetti v. Ceballos (2006), the court said that for a public employee speaking in their official capacity (i.e., in furtherance of their job), there is no First Amendment protection. To the court’s mind, such speech is paid for by the public and, therefore, government speech. Thus, a critical question in assessing the speech protections afforded to teachers is whether the speech is made in an “official” capacity or as a public citizen.

New State Laws

The Garcetti distinction is particularly important considering new state laws that seek to dictate or prohibit certain topics in classrooms. Increased legislative activity in this area raises new questions for teachers and administrators.

Smiley v. Jenner (2024) involved a teacher’s challenge to an Indiana law prohibiting school employees from providing instruction to elementary students (pre-K–3) on “human sexuality.”

The teacher, Kayla Smiley, argued that the law was unconstitutional. She claimed, in part, that she would have to “self-censor” by removing water bottles that had stickers about tolerance toward people who are LGBTQ+ and refrain from engaging in “teachable moments” that might spontaneously arise through student inquiries.

The federal court disagreed, noting that as a teacher, her speech was “government speech,” and under Garcetti, a teacher engaging in speech (even impromptu) that went beyond the Indiana law’s prohibition would not be protected from adverse employment action. Almost all a teacher’s speech and interactions with students are “official” and therefore beyond First Amendment protections, the court held.

To many of us who have been in classrooms, cases like Smiley might be difficult to comprehend. Classroom conversations often begin when a student raises an unanticipated question. Some might argue that this is the essence of learning; others might believe that teachers should stick to the script and be extra diligent in screening their word choices when interacting with students.

What Is ‘Official’?

Here is another case to contemplate, decided this summer. Wood v. Florida Department of Education involved a transgender teacher’s challenge to a Florida state law that prohibits a teacher from using a preferred personal title with students if it does not correspond to their assigned sex at birth.

Katie Wood argued that this violated her First Amendment right to free speech, but the court disagreed, citing Garcetti. More specifically, the court concluded that the statute dealt with a “narrow swath of expression,” applying only to when the teacher interacted with students in her capacity as an employee.

The Wood court noted that when a teacher is interacting with a student, they are in their official capacity. This very strict interpretation of official duties—basically every interaction a teacher has with a student—might have a chilling effect on teacher speech.

This is the new reality, however. And, for better or worse, the First Amendment might not be there to protect teachers trying to seize a “teachable moment” that diverges from a tightly scripted curriculum.

Religious Speech Protections

The impact of a recent Supreme Court case, Kennedy v. Bremerton, is not yet fully understood. In Kennedy, the Supreme Court found that the school district violated a football coach’s First Amendment right to free speech and religious expression when it tried to prohibit the coach from praying on the 50-yard line after football games. The court found that this speech was protected in part because it was private speech.

In some ways, it is hard to square Kennedy with Wood, because pronouns and prayer seem unrelated to a teacher’s duties. Kennedy signals that courts might sympathize more with speech related to an individual’s religious expression, especially when that speech is arguably made off-duty.

Thoughts and Recommendations

I wish the law worked in a direct way; I could offer answers to all of the conceivable scenarios that arise relating to the First Amendment. The best I can do is boil down a few thoughts that might help you through a situation:

1. If an issue arises, remain objective and dispassionate. Sort through the facts before you reach a decision, especially one that could impact a teacher’s employment status.
2. Expect some issue to arise related to teacher expression or speech, especially in states where the legislature has been active in mandating changes to the curriculum.
3. Consider whether the speech involved is made by an employee in their role as a citizen or through their official duties. The answer might not be clear.
4. Is disciplinary action discretionary or required? This is highly fact-dependent, but a claim generally arises only when there is an adverse employment action.
5. If the situation seems complicated or combustible, seek legal counsel. You can address most situations on the spot, but some might not be worth the risk. Know the difference.

The rights of employees—especially in these highly politicized and polarizing times—can raise complicated issues for school administrators. Watch this topic, as states change their curriculum offerings and courts interpret what those changes mean for school employee rights.

Mark Paige is chair and professor of public policy and education law at the University of Massachusetts–Dartmouth.