Key Legal Considerations Regarding Student and Staff ‘Speech’ in an Election Year

Updated March 2022

By Brian P. Goodman and Michael J. Julka of Boardman Clark LLP

Leading up to the spring school board elections and into the fall mid-term elections, students and staff are likely to engage in the political process to some extent. Reflecting the country, many school districts are currently polarized with respect to politics. There are likely students and staff who are passionate about politics, and that passion may impact the school district. A brief overview of key legal considerations will help building administrators navigate issues involving student and staff speech during the election year.

Student Speech

Students’ right to express their political views in school is generally protected under the First Amendment of the U.S. Constitution. However, not all student speech is protected, including speech that:

  • Is within the context of the curriculum;
  • Promotes illegal drug use;
  • Is a true threat; or
  • Is obscene or plainly offensive.

When student speech does not fall within such an exception, building administrators can regulate the speech if they can forecast that the speech will materially interfere with or substantially disrupt a school activity, if such an interference or disruption actually occurs, or if the expression intrudes on the rights of other students (“The U.S. Supreme Court Tinker test”). Generally speaking, speech that is merely controversial or hurts someone’s feelings is unlikely to satisfy the Tinker test and, therefore, may not be regulated. On the other hand, truly problematic speech that disrupts the educational mission of a school can satisfy the Tinker test and thus be regulated.

For example, a student wearing a T-Shirt reading, “Vote Out the School Board” is likely not, without more, offensive or disruptive enough to allow a building administrator to discipline the student for wearing the shirt. On the other hand, if the wearing of that shirt results in significant disruption to the school environment, such as students arguing about the shirt during multiple classes at the expense of the curriculum, administrators are likely to be able to address the wearing of the shirt with the student. Administrators should be cautious not to engage in viewpoint discrimination by permitting students to wear a shirt reading, “Vote to Save the School Board,” but prohibiting a shirt reading, “Vote Out the School Board,” unless administrators can identify a substantial disruption that was caused by the wearing of one of these shirts that was not caused by the wearing of the other shirt.

Administrators should be aware of the political ramifications of regulating either of these shirts, particularly regulating one but not the other, regardless of whether the administrators have a sufficient legal basis for their actions. Members of the greater school community might cry “censorship” or “viewpoint discrimination” without pausing to reflect on the nuances of the specific application of the Tinker test that led to the specific decision.

In 2021, the U.S. Supreme Court issued a decision in B.L. v. Mahanoy Area School District that limits the ability of school administrators to regulate most purely off-campus student speech, including political speech. However, the Court held that in certain circumstances administrators are able to regulate such speech if it constitutes:

  • Serious or severe bullying or harassment targeting particular individuals;
  • Threats aimed at teachers or other students;
  • The failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and
  • Breaches of school security devices, including material maintained within school computers. 

Staff Speech

Public employees’ speech, made pursuant to their ordinary official duties, is not protected by the First Amendment. School districts retain the ability to require staff to teach the prescribed curriculum, including any requirement to approach controversial political issues with neutrality.

Political speech that is outside the scope of an employee’s ordinary official duties is subject to a balancing test (“The U.S. Supreme Court Pickering test.”) The Pickering test provides that public employee speech is protected only if the employee’s First Amendment speech rights outweigh the district’s interest as an employer. This is a fact-intensive analysis that looks at, among other things, maintaining harmony among employees; ensuring the employee can perform the job; and the context, time, place, and manner of the speech.

For example, as long as the decision is not attributable to viewpoint, a building administrator could likely prohibit a teacher from teaching while wearing a shirt that read, “Biden is an Unelected President.” However, a building administrator would likely not be able to discipline a teacher for wearing such a shirt while attending a political rally off school premises.

The appropriateness of political speech is a sensitive topic. Building administrators are advised to approach such situations cautiously, and when appropriate, contact legal counsel for specific advice.