By Kevin Lungwitz
An election is brewing and in case you haven’t noticed, everything these days is political, including COVID-19, masks, social distancing and reopening schools. Regardless whether students and teachers are attending your campus in-person or virtually, everyone has a political opinion about the election, and you might be drawn into the fray. Can you discipline a student or fire a teacher for political speech? What are the basic First Amendment rights of students and school employees to express themselves politically on and off campus?
Students are Citizens
Students are citizens who are compelled to attend school, and you hold the lanyard of governmental authority over them. Away from school, students have, arguably, equal political free speech rights as any citizen. What about student free speech rights in the context of school? Here, student speech is generally protected from administrative regulation or punishment unless it could substantially disrupt the educational process1; unless it becomes confused with institutional speech (e.g. yearbooks, school newspapers, etc.)2; unless it is lewd3; or unless it is harmful drug speech.4 These examples comprise the only four cases decided by the U.S. Supreme Court regarding public school student, free speech.
The Confederate Flag
Through the years, courts have repeatedly upheld bans by schools of the Confederate flag as being potentially disruptive to the educational process. In a case arising out of Burleson ISD, the school district suspended two students for carrying purses adorned with the banned flag.5 The students sued. The school countered with evidence of racial tension, but no evidence of actual violence or disruption. Affirming the flag ban, the 5th Circuit Court of Appeals said:
[Court cases] do not require a showing of past disruption; administrators can also meet their burden by establishing that they had a reasonable expectation, grounded in fact, that the proscribed speech would probably result in disruption.6
The court also insinuated in a footnote that a Confederate flag ban might be upheld based only on the flag’s “emotionally charged” meaning, as “a symbol of white supremacy and racism, even if others view it as a symbol of heritage…”7
MAGA
Let’s get to the nub of it and discuss MAGA (Make America Great Again), President Trump’s well-known campaign slogan. In November 2019, a “Trump ‘em” banner was displayed at an Abilene high school pep rally against their El Paso opponent, just months after the horrific, racist, mass shooting occurred in the border city. No Confederate flag, no MAGA; just the president’s name, used as a verb, was on the sign. Abilene ISD, in one of the strongest Trump media markets in the country, publicly apologized, calling the banner “extremely insensitive.”8 This event may be unprecedented.
Around the country, MAGA-wear has become contentious and some schools have attempted bans, alleging fears of disruption like those related to the Confederate flag.9 One commentator connects the two this way: “For minorities and the disenfranchised, it … brings ancestral ghosts to the fore … To wear a MAGA hat is to wrap oneself in a Confederate flag.”10
Whether we agree with that sentiment, this is a real legal issue for schools. Remember that students have the right to express themselves politically at school, but not in a way that would reasonably provoke substantial disruption. Whether MAGA (or any other political expression, e.g. Black Lives Matter) might cause a substantial disruption will depend heavily on the facts. Whether schools are virtual or in-person could impact the legal analysis, as some of the potentially disruptive political messages will be less so if students are at home.
School Employees are Employees
The heading seems redundant, but it is meant to contrast employees with students. Unlike students who are compelled to attend, teachers are employees who agree to be here. (“Teachers” in this article means all school employees.) For this reason, the government employer has a greater right to regulate the speech of its employees, than the speech of its citizens. Thus, a teacher’s speech is protected only when the teacher speaks “as a citizen” on “a matter of public concern.”11 For example, a teacher’s personal Facebook message opposing the reopening of schools due to COVID-19 would likely be protected, because the teacher would be expressing him or herself as a “citizen” on a “matter of public concern.”
Important caveat: Even if the First Amendment provides protection, if the school district proves the speech was too disruptive to its operations, the school may still be able to sanction the speech and discipline the teacher.12
Employee Speech at School is Subject to Regulation
A teacher’s speech in his or her official capacities may be regulated. It is not until he or she steps into the private role as citizen that the First Amendment provides protection. So, teachers may be directed to avoid political discussions in class, to refrain from displaying political posters in their classrooms, and to not wear political buttons around students, although there could be pedagogical exceptions and administrative approval for any of these. [Important note: Teachers are allowed to discuss politics in a non-disruptive way among themselves on their duty-free time at school; though employees should refrain from using any tangible form of school district resources (other than perhaps the overhead fluorescent light bulbs) to facilitate those political discussions.]
Employee Speech on Social Media
At home, teachers generally shed their employee status and become citizens with a host of social media outlets at their disposal. Add to that a super-charged political atmosphere and some late night, grape-juice infused rants, and what could go wrong?
In a recent case from Fort Worth ISD, a teacher on Twitter asked President Trump to “remove the illegals” and “drug dealers” from her campus. She made other provocative statements to President Trump over several days, which cast aspersions upon students, campus administration, and campus law enforcement.13 Her tweets were, of course, discovered by the school community, they went viral, and there was outrage. Was she speaking as a citizen on matters of public concern? Arguably, yes. But did her speech substantially diminish her ability to do her job? FWISD argued it did and sought to fire her. On appeal, the Commissioner of Education stated:
There is very high First Amendment interest in [the teacher’s] communications because they involve a citizen bringing concerns to an elected official who has authority over those claims … [On the other hand, the school district] makes a strong disruptive argument.14
The teacher won, but only on procedural grounds not relevant to her speech. Yet, the case stands as a harbinger of the social media land mines that lurk this election season for school employees. School employees have a right to express themselves as citizens on matters of public concern, but if the rage post goes viral and/or diminishes the ability to do the job, there could be employment consequences.
Conclusion
The only job of the First Amendment is to protect disagreeable speech. In the schools, there is a balancing act to make sure the teacher’s speech does not compromise the teacher’s ability to do the job, and that the student’s speech does not provoke a substantial risk of disruption. Since these issues are especially tricky, always consult legal counsel before disciplining students or staff for political speech.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 89 S.Ct. 733 (1969)
2Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562 (1988)
3Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159 (1986)
4Morse v. Frederick, 127 S.Ct. 2618 (2007)
5A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 217 (5th Cir. 2009)
6Id. at. 224.
7Id. at 227, n. 5
8Timothy Chipp, “Abilene ISD issues apology after Cooper High banner sparks online outrage,” Abilene Reporter-News, November 15, 2019. Brian Bethel, “Abilene likes Trump, survey shows,” Abilene Reporter-News, December 15, 2016.
9e.g., Hayley Fowler, “Cheerleaders with MAGA sign sparked national debate, dividing NC town ahead of rally,” The Charlotte Observer, September 20, 2019
10Robin Givhan, “The MAGA hat is not a statement of policy. It’s an inflammatory declaration of identity.” The Washington Post, January 24, 2019.
11Connick vs. Myers, 461 U.S. at 140-41, 103 S.Ct. 1684 (1983).
12Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731 (1968)
13Clark v Fort Worth Indep. Sch. Dist., Texas Educ. Agency Docket No. 006-R2-10-2019 (Comm’r Educ. 2019) (The case has been appealed by FWISD)
14Id. at 9, brackets added.
TEPSA News, September/October 2020, Vol 77, No 5
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Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
