Dear Legal Mailbag:

I saw your recent column about a student wearing a shirt to school with the vulgar slogan referring to President Biden, “Let’s Go Brandon.” I was wondering if a teacher has the right to wear a shirt like this in a public school?

This question is not hypothetical. A teacher in an 8th grade middle school science class wore a shirt with that slogan. Several students were upset, but others told the teacher in class that they liked the shirt.

This seems weird. Can the teacher really wear a shirt like that in school? Thank you for any advice you can give.

Signed,
Who Can Say What?

Dear Who:

In a word, no. Teachers have significant influence over their students in school, and school officials may direct teachers not to engage in partisan political speech in the classroom. Since the teacher’s wearing a shirt with that slogan in class is clearly political speech, the teacher does not have the same right to wear such a shirt as would a student.

To remind the reader, Legal Mailbag answered a question two weeks ago about a student’s wearing a “Let’s Go Brandon” shirt to school, stating that it is likely that wearing the shirt would be protected by the First Amendment unless there is dress code for students prohibiting the wearing of any slogans on their clothes. As you will recall, in answering that question, Legal Mailbag relied upon a decision of our Second Circuit Court of Appeals, Guiles v. Marineau, 461 F.3d 320 (2d. Cir. 2006). There, the court held that the student could wear a T-shirt with images of drugs and alcohol to school because the message on the shirt was political speech critical of former President George W. Bush. Going back to the seminal United States Supreme Court case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (U.S. 1969), political speech (and other student speech) is protected under the First Amendment unless school administrators can reasonably forecast material disruption or substantial interference with the education process, or invasion of the rights of others.

The year before it held in Tinker that student First Amendment rights are protected in school, the United States Supreme Court held that public employees retain their free speech rights notwithstanding their public employment. Pickering v. Board of Education, 391 U.S. 563 (U.S. 1968). However, the analytical framework the courts apply to determine the scope of such rights is very different from that used in the Tinker case. In Connick v. Myers, 461 U.S. 138 (U.S. 1983), the United States Supreme Court held that the speech by public employees is protected by the First Amendment if (1) the speech is on a matter of public concern, and (2) any disruptive impact of the speech is outweighed by the importance of the speech.

To be sure, in 1972 shortly after Tinker was decided, the Second Circuit ruled that a teacher had a First Amendment right to wear a black armband in school (similar to the black armband that Mary Beth Tinker wore). James v. Board of Ed. of Central Dist. No. 1 of Towns of Addison et al., 461 F.2d 566 (2d. Cir. 1972). However, that expansive view of teacher free speech rights was short-lived, and in East Hartford Education Association v. Board of Ed. of Town of East Hartford, 562 F.2d 838 (2d Cir. 1977), the Second Circuit ruled that requiring a teacher to wear a tie in school did not infringe upon his First Amendment rights.

Further limits were placed on the free speech protections of public employees in 2006. Then, the United States Supreme Court ruled that public employee speech is not protected when the employee is acting pursuant to his or her job duties. Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”). When teachers are standing in front of a classroom, of course, they are acting “pursuant to duty,” and the classroom is thus not a forum for teacher free speech. See Mayer v. Monroe County Community School Corporation, 474 F.3d 477 (7th Cir. 2007). There, a teacher claimed that her employment was terminated because she took a political stance during a current-events session in her class, and, relying on Garcetti, the court dismissed her claim, stating:

Beyond the fact that teachers hire out their own speech and must provide the service for which employers are willing to pay—which makes this an easier case for the employer than Garcetti, where speech was not what the employee was being paid to create—is the fact that the pupils are a captive audience. Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling. Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives. Majority rule about what subjects and viewpoints will be expressed in the classroom has the potential to turn into indoctrination; elected school boards are tempted to support majority positions about religious or patriotic subjects especially. But if indoctrination is likely, the power should be reposed in someone the people can vote out of office, rather than tenured teachers. At least the board’s views can be debated openly, and the people may choose to elect persons committed to neutrality on contentious issues. That is the path Monroe County has chosen; Mayer was told that she could teach the controversy about policy toward Iraq, drawing out arguments from all perspectives, as long as she kept her opinions to herself. The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.

Given the evolution of teacher free speech rights as described above, Legal Mailbag is confident that school officials have the right to prohibit political speech by teachers in the classroom, including a shirt with the slogan you quote. However, any such restriction against partisan political speech by the teachers must itself be imposed in a constitutional manner. School officials may not pick and choose what partisan political speech is permitted and what is prohibited. If “Let’s Go Brandon” slogans are prohibited in the classroom, so too must be “Biden/Harris 2024.” School officials may require that teachers be neutral in political matters as they teach their classes, but they may not permit some partisan political speech but prohibit other such speech.

Originally appeared in the CAS Weekly Newsletter.