Hotline Generating Speech Questions: Coming Soon to a School Near You?

By Attorney Malina Piontek

COVID-19 is creating a host of new challenges for education leaders, and not all are related to medical issues caused by the virus. In the short time since students have returned to school across the state, I have received several Hotline calls regarding student and staff speech. Today’s Update will address speech issues that other AWSA members may face in the near future.

Disruptive Backgrounds in Virtual Classrooms

A recent Hotline caller presented the following scenario: A middle school student attending school online had a large confederate flag displayed on the wall of the room at his home in which he was “attending” school. The student’s computer was facing the wall during the time he was “in class” virtually. The principal learned about this situation from the teacher who was offended by the display and unsure how to address the situation. He also got a call about it from a parent of a student “attending” the same class who was disturbed by the display and afraid that something more might happen if the school allowed the student to continue to display the flag.

This scenario pits potential First Amendment speech against the rights of students and staff to feel safe in their virtual learning environment. We know from the seminal student free speech case, Tinker v. Des Moines Indep. Cmty. Sch. Dist., that students don’t lost their First Amendment rights to freedom of speech or expression when they enter the proverbial schoolhouse gates, but this student isn’t on school grounds. We also know from Tinker and its progeny that school leaders don’t have to tolerate disruption caused by student speech. Rather, student speech may be curbed if the conduct in question would materially and substantially disrupt the work and discipline of the school. To quote the United States Supreme Court:

“. . . conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”

Here, the student is in school, except his classroom is beyond the brink and mortar of the school building. Moreover, courts have held that depictions of the Confederate flag are not per se offensive, absent additional evidence supporting a potential substantial disruption. So, what should our principal do?

First, the principal should document how the confederate flag display affected the learning environment, looking to see whether the facts could lead him/her to forecast a substantial disruption. For example, s/he should document the who, what, where, when, why and how of the information received from the teacher and the parent. In this fact pattern, the teacher was offended and a student was afraid, which is critical information that should be included in the principal’s documentation. Other questions include: How much teacher time was spent on this issue rather than on teaching or preparing lessons? Were other students impacted, and if so, how?

Second, the principal needs to consider whether there are any board policies implicated by this situation. Does the district’s Acceptable Use Policy come into play? Most acceptable use policies cover district-owned devices whether being used on or off campus. What about a bullying or anti-hate speech policy? One school leader explained that they first ask students who display the confederate flag in the background to take it down, and if they refuse, they enforce it through their policies.

Finally, school leaders should consider whether students attending school online should be directed to switch to a uniform neutral background function or blur their background, if offered by the platform that is being used, so that everyone’s background would look the same. This may also enhance the learning experience in that students aren’t distracted by what they are seeing in other students’ home environments.

Displaying “(Insert A Social Cause) Lives Matter” Messages

Several school leaders have called the Hotline with questions about students and staff wearing masks or clothing with Black Lives Matter, Blue Lives Matter, All Lives Matter – insert another social cause of your choice matters - messages on them.

The same analysis discussed above applies to students expressing messages through their attire. In a nutshell, principals can direct students to remove face masks or t-shirts with profane, vulgar or lewd statements or images. But it gets trickier if the statement or image is political or promotes a social cause. Generally speaking, principals can restrict students’ speech rights if they have a reason to believe that the expression will substantially interfere with or disrupt the educational environment.

The analysis differs when the speaker is a staff member, not a student. Public employee speech is subject to a special set of rules for First Amendment purposes. Whether a public employee’s speech is constitutionally protected depends on whether the employee spoke as a citizen on a matter of public concern. If the speaker is not wearing her hat as a citizen, or if she is not speaking on a matter of public concern, then the First Amendment does not protect her. Moreover, employees do not speak as citizens when they make statements pursuant to their official duties. For example, one court has concluded that a teacher’s in‐classroom speech is not the speech of a “citizen” for First Amendment purposes but is part of her official duties.

Recent headlines report that a head football coach was disciplined, but kept his job, for making anti-BLM statements on social medial. In 2016, a substitute teacher was banned from future assignments for wearing a BLM button to work, with the district citing its policy requiring political neutrality. These headlines point out the need to tread carefully when acting on public employee speech.

As the United States Supreme Court articulated in its seminal Pickering decision, a balance must be struck between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it provides through its employees. This is not an easy task. Based upon this balance, however, it is commonly understood that school employees can be disciplined based on their expression - be it through a mask, a t-shirt or a class discussion - if the school believes that it will impede the employee’s ability to perform assigned duties, or the speech will undermine supervisory authority, disrupt the school, or destroy close working relationships.

These are difficult issues with no universal answers. It is highly recommended that principals consult with legal counsel when faced with staff speech that promotes a social cause, such as Black/Blue/All Lives Matter.

This article was prepared by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. You may direct your Level I call-in questions to Malina at 608-497-3037 or email her at [email protected]. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice.