Can Schools Discipline Teachers for Protests Concerning Gun Control?

By Janet Decker and Mark Paige
Communicator
May 2018, Volume 41, Issue 8

In the wake of the Stoneman Douglass High School shooting in Parkland, Florida, that left 17 students and teachers dead, many members of our school communities realize that they could be next. Many teachers are, rightly, motivated to be a part of the national debate about school safety and gun control. Consequently, they are voicing their views regarding controversial policy proposals, such as arming teachers.

In response, some administrators have threatened to discipline teachers who participate in political protests. Such contemplated action raises significant constitutional questions, such as: where are the boundaries with respect to teachers’ rights to publicly speak about this (and other) important issues and a principal’s right to manage their school and employees? As we note below, the law has set certain parameters in this regard. Yet, given the current political context, it is worth revisiting key principles in this area.

Teachers may advocate about matters of public concern in their roles as private citizens. Teachers enjoy constitutional rights and protections (subject to some limitations) just as other non-public employee citizens. So, when teachers are outside of the classroom, they may advocate for political, social, or other issues of importance to the community (the operative term is “matters of public concern”), including gun control. A teacher with a megaphone in the public square on a Saturday should be free to express his/her opinion on gun safety without fear of reprisal. As a practical matter, school administrators can expect local pressure from community members, parents, or even school board members who disagree with the teacher’s public statements and seek to discipline the teacher. In these situations, principals must be the voice of reason and be careful to apply the law, as opposed to react to emotion.

To be sure, a teacher’s right to speak is not absolute. The limits of those rights have been outlined an important Supreme Court case, Pickering v. Board of Education. Under Pickering, a teacher’s interest in expressing views on matters of public concern must be weighed against a school’s (and, by extension, a principal’s) responsibilities to efficiently operate schools.

Effectively, this means that teachers should be extremely cautious (if not avoid) expressing political views to their students; a classroom is not a soapbox for personal politics. When teachers share their personal beliefs in their role as a teacher, they could be disciplined (Garcetti v. Ceballos). When it comes to issues of school safety, sometimes the line becomes blurry when determining whether teachers are speaking about matters of public concern and when they are speaking pursuant to their roles as teachers (teachers advocating to arm teachers because they were victims of school shootings).

 

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School administrators can discipline teachers (including those who exercise their First Amendment rights), so long as the speech was not the substantially motivating factor in the discipline. The tougher issues arise in the cases when a principals want to discipline teachers for performance issues but teachers may be able to raise an objection based on their First Amendment rights. Let’s put it this way:  assume you are the principal of a building and you have a documented record of poor performance of a teacher and you want to remove that teacher. Also assume, though, that the teacher has been quite vocal in the public square (not in the classroom) with respect to gun control, or other controversial issues. Under Pickering, a principal cannot take an adverse employment action because of that speech. It is protected and the teacher could argue that such action is in retaliation for their exercise of their First Amendment rights.

But the principal has a reasonable response that, if supported by evidence, should carry the day. Indeed, so long as the adverse employment decision was based on performance concerns and the protected speech was not the “motivating factor” the principal’s decision would likely be upheld (Mt. Healthy City Board of Education v. Doyle). Of course, effectively this means that principals must have evidence (evaluations, recorded observations, notes, etc.) that support the claim that the employment action was grounded in performance concerns.

Direct true threats and other inflammatory language is not protected under the First Amendment. If anyone threatens a school, then that type of speech may be illegal and authorities must be notified.

Some final tips:

  1. Teachers can offer their opinion on school safety and gun control but should be careful to voice their concerns in public settings, not the classroom.
  2. Administrators must be prepared to resist calls to discipline teachers coming from community members and parents who disagree with statements made by teachers while in the public, including on social media, on matters of public concern.
  3. Administrators can take an adverse employment actions (e.g., non-renewal) against teachers who make statements on matters of public concern, so long as that action is grounded in legitimate performance concerns and not motivated by the teacher’s speech.

Janet Decker is an associate professor of educational leadership and policy studies at Indiana University Bloomington.

Mark Paige is an associate professor of public policy at the University of Massachusetts-Dartmouth.

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