Balancing Free Speech Against

Hannah Cramer, Walsh Gallegos Treviño Kyle & Robinson P.C.

Like all Americans, public school employees have a wide range of opinions on all of the hot button issues of the day. They enjoy constitutional protection for the expression of those opinions. But there are situations in which the public school, as an employer, has the right to restrict teachers and other employees in what they say, when they say it, or how they say it.

In Kennedy v. Bremerton School District (2022), the U.S. Supreme Court reinforced the landmark Tinker case by holding, “the First Amendment’s protections extend to teachers and students, neither of whom shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Of course,” writes Justice Gorsuch, “none of this means the speech rights of public school employees are so boundless that they may deliver any message to anyone anytime they wish.” This article addresses the middle ground: the rights of public school employees to engage in speech on issues of politics, religion, and social concerns while at work or acting in their official capacity, and how to balance those rights with the interests of the school district as an employer.

One critical question is whether the speech is within the scope of an employee’s duties. Which poses another question: what are the public school employee’s employment duties? A public school teacher’s duties can be broad and multifaceted: imparting knowledge and wisdom to students, and serving as a role model. A public school teacher’s duties can also be narrow: teaching students how to do long division or serve a volleyball.

Kennedy v. Bremerton involved a brief prayer by an assistant football coach immediately after the game at the 50-yard line. The 9th Circuit Court of Appeals held that his personal religious prayer was not entitled to First Amendment protection because it would be perceived as carrying the endorsement of the school district. However, the Supreme Court was quick to shut that down. The Supreme Court held (63) that secondary school students are mature enough