Any Room for Free Speech on the Job?

Legal Brief

As the Supreme Court has observed, employees do not shed First Amendment rights at the schoolhouse gate. Nevertheless, when employees’ communications are work-related, school employers may exercise a high degree of control.

When an employee speaks as a school representative, personal free speech rights are not implicated. For example, relying on the Supreme Court’s decision in Garcetti v. Ceballos, the Fifth Circuit determined that an athletic director in Dallas was not entitled to free speech protection after he sent an internal memo about athletic funds.

Conversely, an employee expressing personal political views away from the workplace has free speech protection so long as the employee’s right to expression on a matter of public concern is not outweighed by the school’s legitimate interest in orderly operations. The most famous example comes from the 1968 Supreme Court case Pickering v. Board of Education, in which a teacher successfully challenged his dismissal after writing a letter to the newspaper criticizing the school board.

Balancing Act

The most delicate balance comes for employees seeking to share personal political views at work, but not as school representatives. Key factors include whether the employee’s speech involves a matter of public concern; the school has a legitimate interest in regulating the speech; and the school has applied its regulation in a reasonable, viewpoint-neutral manner.

 Posters, stickers and T-shirts. School employers may adopt viewpoint-neutral regulations on employee dress (such as campaign buttons), use of school communication systems (personalized e-mail tags) and personal expression through classroom or office decorations.

Most school employers recognize that limited, nondisruptive and clearly personal expression (like bumper stickers on employees’ cars) does not interfere with school operations. However, the school can step in if an employee goes too far. For example, in Johnson v. Poway Unified School District, the Ninth Circuit ruled that a school district had not violated a math teacher’s right to free speech by requiring him to remove expressive signage from his classroom.

 Classroom or soapbox. So-called academic freedom is far more limited in K-12 instruction than higher education. Classroom instruction should adhere to the school’s academic standards, and class discussions should be navigated according to pedagogical goals, not a teacher’s personal views.

 Lobbying on school time. A Tampa-area athletic director made news by sending an e-mail (apparently using his school account) to local principals encouraging the school community to urge legislators to stop pending legislation affecting student transfers. Concern was expressed about a misuse of school resources and that the message might be seen as the school’s official position on the legislation. While the AD did not violate any law, the district clearly had a legitimate interest in regulating his workplace expression.

 Participation in labor organizations. The First Amendment protects employees’ freedom of association, but unless a local law or agreement specifies otherwise, schools are not required to grant employees special opportunities (such as release time) to handle organization business. If meeting places or means of communication (e-mail or school mailboxes) are open for employees’ communication about nonwork matters, then meetings and communications about organization business should be permitted on an equal basis.

Relationship Tip

Finally, for superintendents, the conventional wisdom is to avoid getting involved in school board politics and public campaigns. That practical advice has a legal underpinning as well.

Courts repeatedly have held that a school board has a legitimate interest in dismissing a superintendent with whom the board’s relationship has soured. Free speech rights will not rescue a failed working relationship, so exercise appropriate restraint when discussing school board politics.

Joy Baskin is director of legal services with the Texas Association of School Boards in Austin, Texas.