With students and teachers now back in school and a contentious national election approaching, school administrators may be faced with challenges if and when students and teachers seek to engage in political activity in the schools.  Significantly, the free speech rights of students and teachers are governed by different rules, but one thing is constant — decisions must not be based on the political viewpoint being expressed.  Please consider the following guidance as you navigate these issues. 

STUDENTS

The free speech rights of students under the First Amendment were first articulated by the United States Supreme Court in 1969.  Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  There, the Court considered the case of Mary Beth Tinker, who, along with her brother and a friend, was disciplined for wearing black armbands to school to protest the war in Vietnam.  Ruling in her favor, the Court stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In that case, the Court announced the rule that, subject to subsequent refinements, applies today:  school officials can regulate private student speech only if they reasonably forecast that such speech will result in:

• substantial disruption of the educational process;
• material interference with school activities; or
• the invasion of the rights of others.

The Court has refined the Tinker rule in four subsequent cases, but none applies directly to political speech by students:

• Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).  Vulgar student speech is subject to regulation without a showing of disruption.

• Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).  School-sponsored speech is subject to regulation when school officials have a legitimate pedagogical interest in doing so.

• Morse v. Frederick, 551 U.S. 393 (2007).  Student speech advocating the illegal use of drugs can be regulated without a showing of disruption.

• Mahanoy Area School District v. B.L., 594 U.S. 180 (U.S. 2021).  Vulgar off-campus student speech cannot be regulated, but the Tinker rule still applies to off-campus student speech in limited circumstances (e.g., “severe bullying”).

Given that these exceptions do not relate to student political speech, regulation of such speech must be considered on a case-by-case basis to determine whether administrators reasonably forecast substantial disruption or material interference with the educational process or the invasion of the rights of others.

Common issues include the following:

Campaign Buttons

Students are free to wear campaign buttons or pins signifying support for a political candidate.  Though unlikely, if the wearing of a campaign button would be seriously disruptive, school officials could prohibit students from doing so.  For example, in the year following Tinker, the Sixth Circuit ruled that school administrators in a particular school could prohibit the wearing of buttons because they reasonably forecast that the wearing of buttons with messages relating to racial tensions would result in disruption.  Moreover, adjudicating which buttons to permit would be an impossible burden.  Guzick v. Drebus, 431 F.2d 534 (6th Cir. 1970).  If campaign buttons become an issue in a particular school district, however, the burden would be on school administrators seeking to prohibit the buttons to show that the Tinker standard has been met.

T-Shirts and Hats

The Tinker rule has been applied in many cases to the messages on T-shirts that students wear to school.  Such cases have, among other topics, dealt with images of weapons, vulgarity, and messages regarding LGBTQ+ rights (or opposition thereto).  Given that political speech was at issue in Tinker, political speech is afforded special protection, and it is unlikely that a T-shirt with a message supporting a political candidate would permit a school administrator to prohibit a particular T-shirt. 

In 2006, the Second Circuit wrestled with a case in which a student wore a T-shirt to school with images of cocaine and martini glasses, along with references to President George W. Bush as “Chicken Hawk in Chief.”  Guiles v. Marineau, 461 F.2d 320 (2nd Cir. 2006).  School officials had required that the student cover the images of drugs and alcohol on the T-shirt.  However, the court ruled that such action violated the free speech rights of the student, holding that censoring such images would blunt the student’s political message and was impermissible in the absence of a forecast of substantial disruption or material interference with the educational process.

As to hats, earlier this year, the Eastern District of Michigan dealt with a First Amendment challenge by a parent after his daughter was prohibited on “Wear A Hat Day” from wearing in her third-grade classroom a hat embroidered with an image of an AR-15 and the slogan “COME AND TAKE IT.”  C.S. by Stroud v. McCrumb, __ F. Supp. __, 2024 WL 1343308 (E.D. Mich. 2024).  The court ruled in favor of the school district based on Tinker, and we will see if the case is appealed.

Finally, the courts have affirmed the right of school districts to impose uniform policies.  See, e.g., Littlefield v. Forney Independent School District, 268 F.3d 275 (5th Cir. 2001).  Also, Conn. Gen. Stat. § 10-221f provides that “[a] local or regional board of education may specify a school uniform for students in schools under its jurisdiction.”  Therefore, when a uniform policy is implemented, T-shirts or hats that violate the policy may be prohibited, even when the T-shirts or hats carry messages, because such a prohibition would be content neutral.   

Distribution of Leaflets and Political Literature

While the First Amendment prohibits discrimination on the basis of the viewpoint of the speech, reasonable regulation of the time, place, and manner of speech is permitted under the First Amendment.  In M.A.L. ex rel M.L. v. Kinsland, 543 F.2d 841 (6th Cir. 2008), for example, the Sixth Circuit upheld a leaflet distribution policy that prohibited middle school students from passing out leaflets between classes, finding that permitting the student to post his leaflets on bulletin boards and to pass them out in the cafeteria were reasonable time, place, and manner restrictions on speech.  Each case will be decided on the specific facts, but concern for disruption or even littering can justify reasonable restrictions on the distribution of leaflets or other literature, including political leaflets.  

TEACHERS AND OTHER SCHOOL EMPLOYEES

The United States Supreme Court first recognized that public employees have free speech rights in 1968, the year before it decided Tinker.  Pickering v. Board of Education, 391 U.S. 563 (1968).  Subsequently, the Court announced in Connick v. Myers, 461 U.S. 138 (1983) the analytical framework that applies today for determining whether speech by a public employee has First Amendment protection.

First, the speech must relate to a matter of public concern; statements on purely private concerns are not protected by the First Amendment.  It is not always clear what speech will be considered a matter of public concern (and thus protected under Connick) and what speech will relate to a private matter (and thus will be unprotected).  Courts will take into consideration factors such as the content, form, and context of the speech.  In Rankin v. McPherson, 483 U.S. 378 (1987), for example, a police department clerk was fired for saying “The next time they go for him, I hope they get him” after President Reagan was shot.  The United States Supreme Court held 5-4 in that case that the comment was protected because it related to a matter of public concern, namely President Reagan’s policies toward minorities.  

Second, if speech relates to a matter of public concern, and thus may be protected, the courts will balance the importance of the speech against its disruptive impact (if any) to determine whether the speech is protected.  In Connick, the Court held that the free speech interests of public employees must be balanced against the legitimate interest of public agencies to operate efficiently.  If the speech is a serious disruption, the employer can prohibit it and/or take related disciplinary action against the employee.  Following Connick, the Eighth Circuit identified the following factors that may be considered in determining whether speech by a public employee is protected:

• the need for harmony in the public workplace;
• whether there is a need for a close working relationship between the speaker and the persons who could be affected by the speech;
• the time, place, and manner of the speech;
• the context in which the dispute arose;
• the degree of public interest in the speech; and
• whether the speech impeded the ability of other employees to perform their duties.

Roberts v. Van Buren Public Schools, 773 F.2d 948 (8th Cir. 1985).  

By contrast, speech expressed as part of one’s job duties is not protected by the First Amendment.  Garcetti v. Ceballos, 547 U.S. 410 (2006).  There, the United States Supreme Court held: “[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.”  Teachers and other public employees, therefore, cannot make free speech claims for speech arising from their job responsibilities.  The Garcetti holding applies to teaching itself, Mayer v. Monroe Community School Corporation, 474 F.3d 477 (7th Cir. 2007), cert. denied, 128 S. Ct. 160 (2007) (classroom comments on the war in Iraq not protected speech), or other speech that is “pursuant to duty,” such as parent-teacher conferences.  

Common issues include the following:

Political Speech in the Classroom

Given the ruling in the Garcetti case, it is clear that teachers do not have the right to express their personal political views in the classroom or otherwise in their professional interactions with students and parents.  A discussion of the election may be an appropriate topic for instruction in certain circumstances (e.g., Civics, Social Studies).  However, even in such cases, teachers can be required to refrain from sharing personal political views because such speech in the classroom is not protected by the First Amendment.  

Signs or other political messages in the classroom may be prohibited, subject to the following.  Whether such speech has any protection will depend on whether the district permits personal, non-educational displays in classroom.  If such personal displays have been permitted, a teacher could claim that the school district has created a forum for speech.  In such case, restrictions on speech, such as campaign signs, would be subject to the Connick v. Myers balancing test.  However, classrooms are not generally considered a forum for expressing personal viewpoints on topics other than education.  Accordingly, in such cases school officials can prohibit teachers from having political displays in their classroom.  In any event, if and when the expression of political views is permitted through signs or otherwise, all such messages must be treated equally without discrimination based on viewpoint.

Campaign Buttons and Hats

A prohibition against political speech in classrooms can be extended to the wearing of campaign buttons and hats in classrooms.  Moreover, even when teachers are not engaged in instruction, they are “on duty” in the school setting.  Therefore, school officials can prohibit the wearing of campaign buttons or hats with political messages in school.

Bumper Stickers

One may anticipate that some teachers will have bumper stickers on their cars that express support for specific candidates.  Given that such speech is purely personal, any regulation of that speech will be subject to the Connick v. Myers balancing test.  In most cases, there will be no countervailing disruption that would weigh against permitting such political expressions.  However, an extreme case (such as a large sign on top of a car in the school parking lot) could cause school officials to strike the balance against allowing such signs.  Such displays in a school parking lot could be misconstrued as official support for a specific candidate.

District Email

Over time, employee use of district email has evolved, and school district employers generally have no objection to employees using district email for personal purposes, such as communicating with family and friends or purchasing items online on an incidental basis.  Such use of email can include the expression of political preferences to friends and others.  However, district email typically carries with it the imprimatur of the school district in the signature block or otherwise.  Accordingly, in the absence of judicial precedents to the contrary, it is reasonable to conclude that districts may enforce prohibitions against the use of the district email for political purposes, such as advocating financial or other support for a candidate. 

ACTIVITIES INVOLVING BOTH STUDENTS AND TEACHERS

The preceding discussion outlines the different rules applicable to student speech and employee speech in the school context.  However, there are times when both analyses come into play.  

Two such scenarios are discussed below.

Community Service

Pursuant to Conn. Gen. Stat. § 10-221a(i), a board of education may offer one-half graduation credit in community service under the following conditions: if the service meets specific requirements, is supervised by a certified school administrator or teacher, and the student completes ten hours of related classroom instruction.  Prior to July 1, 2024, “partisan political activities” were excluded from the definition of community service. Effective July 1, 2024, the law was revised to remove this exclusion.  

As such, if a school district allows students to perform community service to earn graduation credit, two issues now arise: (1) Can a school district prohibit a student from volunteering for a partisan political organization in order to meet the community service requirement? and (2) if a student does volunteer for a partisan political organization in order to earn community service credit, can or should there be any limits on the role of the supervising school administrator or teacher? 

Our take on these questions is that (1) school officials can (but need not) prohibit students from volunteering for partisan political organizations, and (2) if school officials permit students to earn one-half credit for community service by volunteering for a partisan political organization, they can prohibit the supervising teacher or administrator in participating in partisan political activities when they serve in the role of advisor of such students.  Conn. Gen. Stat. § 10-221a(i) permits but does not require that boards of education offer the opportunity to earn credit through community service, and therefore we conclude that school officials may limit the option for students to non-partisan community service when they have a legitimate pedagogical reason for doing so.  Moreover, the advisor would be acting “pursuant to duty” and can be (and should be) subject to the condition that the advisor not directly participate in such partisan activities.

Student-Initiated Clubs

Pursuant to the Equal Access Act (“Act”), 20 U.S.C. §§ 4071 through 4074:

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

In many districts where non-curriculum student groups have formed, students have also formed politically-oriented clubs.  Pursuant to the Equal Access Act, such students must be allowed to conduct “meetings,” a term that extends beyond the traditional understanding of the word and includes opportunities afforded to other student clubs that are not directly related to the curriculum (e.g., access to the school newspaper, bulletin boards, or a table at the student activity fair).  Many districts require their student groups to be supervised by an advisor, who is often a teacher at the secondary school.  

In such instances, questions may arise, including but not limited to: (1) whether students can use the school’s publication mechanisms (e.g., the P.A. system) to make political announcements, and (2) whether the school can restrict the advisor’s role in a political club to a supervisory, but non-participatory, capacity.  

We believe that the advisor’s role with a student political club may be restricted to supervision and not direct participation in political activities, given that acting as an advisor to a student club is a job duty, not a forum for employee speech.  In addition, it is clear that, once a limited public forum is created, non-curricular student clubs must be given equal access and a fair opportunity to conduct meetings in school facilities, and no restriction on exercising that right may be based on the viewpoint of the student speaker(s).  Accordingly, we advise that access for student-initiated clubs to school facilities be limited to having a place to meet and to publicizing their events, rather than allowing substantive club activities to be conducted over the broadcast system and/or on hallway bulletin boards.

We hope that the foregoing discussion of political speech in the schools is helpful.  Best wishes for a quiet fall.

The information set forth above was developed for CAPSS to share with its members and reposted here.