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 political polarization in America, there are instances of students and staff bringing their passion about politics into their school districts. 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, even if student speech is constitutionally protected, 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 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.

For example, a student wearing a T-Shirt reading “Black Lives Matter” or “Blue Lives Matter” 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 either 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, building administrators are likely to be able to address the wearing of the shirt with the student. Building administrators should be cautious not to engage in viewpoint discrimination by permitting students to wear a shirt reading “Black Lives Matter” but prohibiting a shirt reading “Blue Lives Matter,” unless the building 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.

Student depictions of the Confederate flag also raise First Amendment concerns. If such a depiction causes a substantial disruption to the school environment, that would provide a sufficient basis to regulate the depiction. However, in order to reasonably forecast a substantial disruption, building administrators should inquire as to whether there have been past racial incidents at the school that would support forecasting a substantial disruption to the school environment. Additionally, building administrators should be aware that schools can ban racially divisive symbols while permitting racially inclusive symbols without engaging in viewpoint discrimination.

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. School boards also have the right to prohibit political activity by staff while exercising their official duties.

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, under the Pickering test, a building administrator could likely discipline a teacher for posting an overtly racist public message on social media criticizing the school district by name for educating undocumented Hispanic immigrants (particularly given the teacher’s legal obligation to provide an education to these students). However, a building administrator would likely not be able to discipline a teacher for wearing a “Build the Wall” 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.

This information is intended to provide authoritative general information, with commentary, as a service to AWSA members. The materials and information provided in this article are subject to change without notice and should not be construed as legal advice. If needed, legal advice regarding any topic, issue, situation or incident should be obtained from the school district's legal counsel. You may also direct your Level I legal questions to AWSA’s retained legal counsel, Malina Piontek, at 608-497-3037 or [email protected]