Dear Legal Mailbag:
This sure has been one crazy time in history. A few weeks ago, I attended a protest rally in my school district. As a school principal, I thought it would be important to listen to what people had to say in the community where I work. But I did wear a hat and sunglasses in the hope of keeping a low profile.
Despite my amateur efforts at disguise, I was soon surrounded by former students, parents and others, who apparently thought that I was there as a representative of the school district. Then the rally organizer asked me to please take the microphone and address the crowd. I am usually not short on words, but I declined the offer. Next thing I knew, former students took the microphone and started sharing their personal experiences in various schools, including my own. Some students were openly calling teachers racists, among other things.
Should I be concerned of any legal ramifications?
Should I Have Worn a Bigger Hat?
No. You did fine. You attended the rally out of dedication to your district and an interest in hearing what people have to say. Moreover, you made a good choice to resist your natural impulses and to decline to speak when you received the ad hoc request.
As a faithful reader of Legal Mailbag, you know that public employees have a right to speak out on matters of public concern. You also know that right is not unlimited and, when public employees speak out, their speech is not protected if the disruptive impact of the speech outweighs its importance (the “Connick v. Myers balancing test”). Finally, when public employees speak as part of their job duties (“pursuant to duty”), their speech is strictly an employment matter, and such speech is not protected by the First Amendment.
Here, your status in attending the rally was ambiguous at best. As a private, curious person, you wanted to hear what people had to say. As a conscientious public official, you wanted to hear what people had to say. If you had addressed the crowd and said something that was offensive to the powers that be, you could certainly argue that your speech was protected by the First Amendment because you attended and spoke at the rally as a private individual. But others may not see it that way, and you certainly don’t want to be the test case to find out.
Your status as a principal is important to the analysis. Given that you are a school leader, any comments you may have made at the rally would likely be imputed to the school district, and Legal Mailbag infers from your email that you were not asked to serve as a spokesperson for the school district. Your speaking at the rally could have been seen as poor judgment for which you could have been reprimanded. You were wise to leave the public response to designated spokespersons for your school district.
Legal Mailbag is sympathetic to your concern that students and others were criticizing school employees and even calling them racist. But by speaking out, even to defend the district and its employees, you could have been seen as participating in and validating the rally.
In sum, you showed good judgment by exercising restraint and not speaking off the cuff at the rally when you were invited to do so. Indeed, Legal Mailbag has only one bit of advice for you – next time wear a bigger hat!