Community Dissent and the First Amendment

Legal Brief

WE LIVE IN politically charged times. Whether it’s a team protesting the national anthem, a staff member injecting politics into job duties or a member of the public hijacking a meeting, school districts increasingly face forms of public dissent.

When considering whether and how to respond, leaders must consider the First Amendment. The law is settled that school districts are generally subject to the First Amendment. How it applies, though, often varies with the context, including whom the district is regulating.

Student Impact

The U.S. Supreme Court has held that students have First Amendment rights at school, but not to the same extent as an adult on a street corner. In general, school districts may regulate:

• speech that results in actual or reasonable forecasts of “substantial disruption of or material interference with” school activities or the rights of others;
• lewd speech;
• school-sponsored speech, so long as the regulations are reasonably related to legitimate pedagogical concerns; and
• speech that promotes illegal drug use.

In VA v. San Pasqual Unified School District, a federal trial court in California in 2017 blocked a school district policy forbidding teams from kneeling during the national anthem. The district imposed the rule after an opposing school’s fans threatened its football players and threw water in their direction. The court rejected the contention that the kneeling protest could be viewed as school-sponsored speech and, despite the water-throwing, found no actual or foreseeable substantial disruption or interference with school activities.

Employee Impact

For employees, districts often have greater leeway to regulate speech. The First Amendment generally does not restrict an employer’s right to regulate an employee’s speech uttered in the course of performing the employee’s duties.

For other types of employee speech, the question turns first on whether the employee is speaking on a matter of public concern, such as the school budget, or a matter of private concern, such as the employee’s own work hours. If the employee is speaking on a matter of public concern, a balancing test applies: The court weighs the interests of the district employee in commenting on the matter as a citizen against the interests of the school district as an employer in promoting efficiency and effectiveness.

Public Comments

Finally, for members of the public, two common situations are public participation in school board meetings and the use of district facilities by outside groups. The precise rules applicable largely depend on the type of forum the district created through its own policies and practices.

In general, if the district opened the forum for all comers on all topics, the district cannot then pick and choose among speakers based on the subject matter or their viewpoint. Any content-neutral restrictions (e.g., place, time, manner) must be narrowly tailored to serve an important government interest and leave open ample alternative avenues of communication.

If the district opened the forum for particular topics or types of speakers, the district generally may impose restrictions that are reasonable relative to the forum’s purpose and viewpoint neutral.

In all events, a district may not engage in viewpoint discrimination — it may not allow some speech on a topic but forbid other speech based on its perspective.

Nuanced Applications

The First Amendment is a crucial consideration when considering what (if anything) to do in response to community dissent. Though crucial, its application is often nuanced and fact-dependent. So when community dissent erupts, and perhaps even before, school leaders should know that the First Amendment can limit the response. And they should be ready to engage early and often with the district’s legal counsel.

JOEL BUCKMAN is a senior associate attorney specializing in education law with Hogan Lovells in Washington, D.C.