Editor’s Note: This is a guest post from MSTA’s Staff Attorney, Kyle Farmer.
Protests, rallies and marches, while seemingly constant in today’s political climate, are not a new concept. These forms of social activism have a long and storied place in the history of the United States. That being said, there are some things to consider before marking up your most clever sign and heading downtown to join your fellow marchers.
Let’s start with your rights under the US Constitution. The First Amendment to the Bill of Rights offers many protections including the assurance there is no abridging the right of free speech nor interfering with the right to peaceful assembly. Both of those statements guarantee your right to join a peaceful protest or march espousing your social and/or political views.
In general, a school district cannot terminate an employee for speech protected by the First Amendment assuming the speech is regarding a matter of public concern, does not prevent the district from efficiently providing services and was not made pursuant to your official duties.
Beyond the protections of the First Amendment, we must also analyze the rights and responsibilities set out in the Missouri Teacher Tenure Act.
Most importantly, we must consider the district’s ability to terminate a teacher for “immoral conduct.” While there is no bright-line definition of immoral conduct, courts have repeatedly found that immoral conduct must be shown to have an effect on the teacher’s ability to do his or her job. In that context, participation in a peaceful protest, rally or march would most likely not rise to the level of immoral conduct. Exceptions would be rallies promoting illegal activity or hate speech.
All of the discussion to this point presumes participation in a peaceful, legal assembly. District employees participating in illegal or lewd activity as a part of a protest, rally or march would not be protected by the First Amendment nor the Teacher Tenure Act. For example, participation in some of the violent and destructive protests we witnessed in Ferguson in 2014 could lead to termination under the law.
If you have any questions or concerns, please contact MSTA’s Legal Services department at 866-343-6186 or firstname.lastname@example.org.