Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
I read with interest your answer last week to Silence is Golden, but I was left curious as to what rights teachers have to wear buttons and shirts in school that show their support for their favored candidate. It seems that, as adults, teachers should have more rights than students. I took a school law course a couple of years ago, and I know all about in loco parentis, and that teachers and administrators act like parents in directing children to behave. I understand that students’ free speech rights are limited but, presumably, teachers keep their free speech rights in school.
Yesterday, a parent came to complain that a teacher had worn a Joe Biden button to class. I told her to relax because Joe Biden is a credible candidate and a teacher certainly has the right to show support for his candidacy. It’s not like he was wearing a MAGA hat or something. But the parent wasn’t buying my story and she left in evident frustration. She told me that she would be bringing her complaint to the superintendent, and now I am worried. Should I be?
Where do I begin? I guess that I am glad that you remember the in loco parentis doctrine, but you are way off in your understanding of the free speech rights of teachers and other school employees. As Legal Mailbag noted last week, students have robust free speech rights, and school administrators can restrict student free speech only if they reasonably forecast that the speech will cause material disruption to the educational process (or that the speech is vulgar, advocates drug use or violates the rights of others).
Interestingly, in Tinker v. Des Moines Independent School District, the United States Supreme Court also noted that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, in the intervening fifty years, the Court has decided two cases that more specifically define teacher (and other public employee) free speech rights. In 1983, the Court decided Connick v. Meyers, holding that public employees have free speech rights when (1) they speak on a matter of public concern, and (2) the importance of the speech outweighs any disruptive impact of the speech. Then, in 2006, the Court decided Garcetti v. Ceballos, holding that when public employee speech is “pursuant to duty” (i.e., when they are fulfilling job duties), the speech is not subject to First Amendment protection.
Applying these rules to the school setting, certain things are clear. First, when teachers are teaching, it is reasonable to expect (and direct) that they should not promote any particular candidate when performing their professional duties. That expectation reasonably extends to classroom displays and to personal displays (such as buttons, stickers or posters). Such restrictions are reasonable because the classroom is a place of learning, and teachers exert influence by virtue of their position.
By contrast, such regulations must be reasonable, and when teachers are not teaching or supervising students, they retain their First Amendment rights to advocate for specific candidates or causes. Bumper stickers, for example, are certainly permitted, as would other signs of political support when they are not interacting with students. A key principle here is that regulation of speech should be reasonable and related to legitimate concerns over teacher proselytizing with students.
Finally, any regulation of speech must not be “content-based,” i.e., related to the views of any particular candidate. Legal Mailbag was concerned by your contrasting a Biden button with a MAGA hat. School officials can regulate political speech as such, and should never differentiate between political speech they like and political speech that they do not.