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How Free Is Out-of-School Speech?

By Mark Paige
Principal, November/December 2020. Volume 100, Number 2.

You have probably heard stories about educators disciplined for expressing their views on the issues of the day on social media. These situations raise a persistent legal question: Can school districts discipline them for such speech without violating the First Amendment? The election year is an appropriate time to review this question.

I present the two simplified examples that follow to review the issue of free speech in your dual role as an employee (someone who might voice personal opinions outside the school setting) and as a supervisor (someone who might be asked to address statements made by a teacher or staff member).

Recently, a Vermont school district placed a K–12 principal on paid administrative leave following a posting she made on a personal Facebook page regarding the Black Lives Matter (BLM) movement. Her statement, according to news reports, “uniformly appalled” the district’s school board and was called “insanely tone-deaf” by recent graduates.

In July, a California high school teacher and coach claimed he was fired for posting a tweet in support of President Donald Trump’s push to reopen schools that read, “I’m done being silent. @realDonaldTrump is our president” in response to a follower’s tweet that read, “Liberals suck, man.” The district responded that the tweet was not the reason behind the teacher’s termination.

Before reading the brief outline of the law, consider these questions: Without passing judgment on the comments, can the district legally take employment actions in these cases? And if they can take employment actions, should they?

The Letter of the Law

School employees do not relinquish their constitutional rights at the schoolhouse gate; they have First Amendment protections. But the right to free speech is not unfettered. School districts can take an adverse employment action based on an educator’s exercise of that right that occurs outside the workplace under certain circumstances.

A district can successfully defend its action (e.g., termination, reprimand) against a First Amendment retaliation claim if (1) the educator is acting as an employee and not a “citizen”; (2) the matter is not of public concern; (3) the government’s interest in running efficient schools outweighs the educator’s interest in commenting on the matter; and finally, (4) the speech was not the motivating reason for the adverse employment action.

Let’s apply this test to the above examples.

The Tone-Deaf Principal

In the Vermont principal’s case, let’s assume that she made the comments as a citizen. The issue (BLM) is clearly a matter of public concern or scrutiny. That leaves us at the third prong of the test: Did the principal’s interest in speaking on the matter outweigh the district’s ability to efficiently operate the school?

The school district could argue in court that the principal—who occupies a leadership position in the community—no longer had the public faith and legitimacy needed to run the school properly. Press reports suggested that some members of the community questioned whether the principal could continue to lead.

But a court could just as likely determine that the principal’s speech was political speech on a significant topic, and that her individual right to political expression outweighed the district’s concerns. Perhaps reflecting the close call on this case, the district and the principal are now negotiating a severance package.

The Tweeting Teacher

In the California teacher’s case, the focus is again on the third prong of the legal test: weighing the employee’s interest in commenting against the district’s need to efficiently operate schools. The tweet regarding President Trump appears to be pure political speech—likely protected.

The comment about “liberals” could allow an argument that the tweet might interfere with the operation of the school. Arguably, it could chill student expression that might be considered liberal in the teacher’s class. Would that chilling effect materially interfere with the operation of the school? A court would have to decide based on the facts of that case.

What do you think? As a practical matter, consider the fact that the teacher’s message has been amplified since his termination. National news outlets have reported the firing, and some people and groups claim that it represents intolerance for certain political viewpoints.

What These Cases Mean to You

Expressing your personal views as both a principal and an engaged citizen, on your own time and in a civil way, can set an example of civic engagement.

You might feel more compelled than ever to engage in today’s political discourse, and you should. Your voice—
especially on matters that impact children and education—matters. The First Amendment gives you room to engage politically without fear of losing your job. Be prepared for some reaction from the community, to be sure.

But what about regulating the speech of your teachers? Even if you disagree with the speech politically or it makes you uncomfortable, be cautious. Depending on the situation, you don’t always have to react to a particular statement.

You might hear from community members who disagree with a teacher’s comments. Yet, political statements that make people uncomfortable or foster disagreement are generally (all cases being different) insufficient to warrant adverse employment actions.

When you wear your citizen’s hat, you’ll likely want to take action or express yourself, and the First Amendment can shield you with some qualifications. When you wear your principal’s hat, remember that the First Amendment protects staffers’ statements, too—even those you find disagreeable.

You are engaged in important work that has an effect on how we discuss contentious issues. You have an opportunity to model how we engage in the type of civil discourse our democracy needs to thrive. As a parent and a citizen, I ask you to embrace it.

Mark Paige is associate professor of public policy at the University of Massachusetts Dartmouth, a former school law attorney, and a board member of the Education Law Association.

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