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

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

Leading up to the November presidential election, students and staff are likely to engage in the political process to some extent. Reflecting the country, most school districts are currently polarized with respect to politics. Many students and staff are passionate about politics, and that passion is likely to 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, or if the expression intrudes on the rights of other students (“The 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 offensive speech that disrupts the educational mission of a school can satisfy the Tinker test.

For example, a student wearing a T-Shirt reading, “Build the Wall!” 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 school district has a history of racial incidents targeting Latinx students, administrators are likely to be able to address the wearing of the shirt with the student.

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 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, a building administrator could likely prohibit a teacher from teaching while wearing a shirt that read, “President Sanders 2020!” However, a building administrator would likely not be able to discipline a teacher for wearing that 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.