Earlier we published information regarding political speech in the classroom.  While that article pointed out that the district’s ability to limit your political speech does not extend beyond the course of your official duties, we thought it would be helpful to remind you of the other limitations on speech by public employees given the high number of important social matters going on in our country and communities today.

The  First Amendment to the U.S. Constitution protects a person’s right to speak freely on certain matters.  Unfortunately, this right is not absolute and is often misunderstood and misapplied.  First Amendment protection, often, does not protect you from adverse employment action.  Luckily there is no  shortage of caselaw in the books detailing what it takes for a statement to  be protected in the workplace. The below factors must ALL be met:

1. The statement cannot be made in the course of the employee’s official duties.

School districts have the authority to control course content and teaching methods. You are generally considered to speak for the school district when you are in your classroom. Therefore, your speech in the classroom does not have First Amendment protection.  Political speech in the classroom should be limited to courses where politics and current  events are part of the curriculum.  In general, you should exercise caution not to appear as advocating a particular religious or political view in the classroom.  “Speech” also applies to classroom decoration, posters or displays.

2. The statement must relate to a matter of public concern.

This means the speech must be  about an issue beyond your personal job or situation and relate to a matter of concern for the community as a whole. For example, if you attend an anti-mask rally on the weekend or post an article favorable to a political candidate or social movement on your Facebook wall, you cannot be disciplined.  However, courts have found that teachers can be disciplined for departing from the curriculum adopted by the school district, and inserting your personal experience as a protester could be considered such a departure.

3. The statement cannot be so disruptive as to prevent the employer from operating efficiently.

Most district policies legally require professional and courteous communication with students, parents and colleagues and prohibit the use of work time  for political campaigning.  Generally, your speech outside school that is not related to your work and is on a topic of public importance is protected by the First Amendment.

However, if school officials can show that your speech, whether verbal or written, could adversely affect school functions or your effectiveness as a teacher, the First Amendment may not protect you.  A district can discipline an employee for speech on social media as well.  In general, if you use social media in your private capacity to express your beliefs on a matter of public concern, you may be protected.  However, if you use social media to comment about students, school or other work-related matters, or you use it to engage in what might be considered conduct impairing your functioning as a teacher, the First Amendment may not protect you.

While we urge you to exercise caution as a public employee, we don’t mean to create a chilling effect on discussions of important and timely matters of public concern.  If you are unsure whether speech will be protected, please reach out to us in the MSTA Legal Services Department, 866-343-6186 or email legalservices@msta.org.

Jane O’Toole, MSTA Staff Attorney

Visit Bunker Hill in 2019