VIP Focus: Political Speech in the K-12 Classroom

By Ashleigh Draft and Charyn Hain, Varnum LLP

DashBoard, March 18, 2020

Varnum Attorneys at LawMay a teacher talk with a class about her participation in a Black Lives Matter rally over the weekend? Or wear a button that supports a particular political candidate? What about this same type of speech outside the classroom? The 2020 election cycle will likely bring such questions into sharp relief and districts are well advised to tread with care due to the legally complicated and politically charged nature of these issues.

Although each particular situation will require careful analysis of the specific facts, there are certain principles that apply. Generally, the First Amendment protects the speech of public school teachers if they are speaking as a private citizen on a matter of public concern. For instance, the First Amendment will protect a teacher who attends a political rally on the weekend or who posts material favoring a particular political candidate on his or her Facebook page. Similarly, the U.S. Supreme Court has held that a teacher may not be disciplined for sending a letter to the editor of a local newspaper that criticizes the school board’s allocation of funds for academics and athletics.

However, when teachers are speaking as part of their job duties, their speech does not have the same protection because what a teacher says or communicates inside the classroom is considered speech on behalf of the school district and, therefore, is not entitled to First Amendment protection. This “speech” includes classroom decoration, posters and displays, and school districts may require teachers to remove political signs from the classroom.

For example, in Mayer v. Monroe County Community School, the Seventh Circuit upheld the dismissal of a teacher after she expressed her disapproval of the Iraq war during a current events session in her elementary school classroom. The Court held that the First Amendment does not entitle public school teachers “to cover topics or advocate viewpoints that depart from the curriculum adopted by the school system.” Though situations must be considered on a case-by-case basis, inserting one’s own viewpoint or personal experiences into instruction may be considered such a departure.

Similarly, in Brown v. Chicago Board of Education, a teacher was disciplined for using a racial slur in the classroom in violation of Chicago Public Schools policy that forbids the use of such language. The teacher used the slur after intercepting a note between two students that included music lyrics containing the particular racial slur. The teacher used this moment as a lesson on why such language was harmful, but in providing the lesson used the word himself. The Seventh Circuit upheld his dismissal, holding that the school board had the authority to control the method of instruction.

Speech may include political attire. For example, the U.S. Supreme Court ruled that students may wear armbands to school as an expression of their political speech. The Court wrote, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Importantly, though, this right to free speech may be limited if the speech would cause “substantial and material disruption” to the educational environment.

For instance, the Sixth Circuit has repeatedly upheld bans on students’ attire featuring the Confederate flag, holding that the school districts appropriately forecast that such attire would cause a disruption. Similarly, a New York court upheld a school district's policy that prohibited teachers from wearing political campaign buttons in school buildings. And a Michigan court has upheld discipline of a teacher whose political t-shirt caused disharmony in the workplace.

As courts continue to balance the competing interests of free speech, administrative control of curriculum and a school environment conducive to learning, this area of the law continues to evolve. Again, because these determinations are fact-specific, school districts are encouraged to consult with legal counsel as issues arise. 

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