Against Parent Objection

to understand that a school does not endorse speech that it merely permits on a nondiscriminatory basis.

Courts will also look at the timing and circumstances of employee speech. Other appellate courts have found that a teacher’s speech inside the classroom is not private speech because teachers are hired for the purpose of teaching curriculum to students. Contrast that with an employee’s participation in a march at the capitol, during the weekend. It is also unlikely that a teacher is fulfilling a responsibility imposed by her employment by attending church on Sunday morning with her family.

Even with First Amendment protection, a school district can justify overriding an employee’s rights if the district’s interests outweigh the interests of the teacher. However, this requires the school district to survive “strict scrutiny,” a high standard that requires any restrictions on an employee’s protected rights to serve a compelling interest and be narrowly tailored to that end.

For example, in Williams v. Dallas Independent School District (2007), the 5th Circuit held that an athletic director could be fired for sending a memo that questioned funding allocations within the school, because he was speaking in the course of his employment and thus was not protected by the First Amendment. That same employee could not be fired for kneeling at midfield after a football game to offer a quiet prayer. In the latter situation, the coach’s prayers do not owe their existence to his responsibilities as a public employee.

A district contemplating discipline against an employee for exercising speech should consider (1) the employee’s specific duties; (2) whether the employee was acting within the scope of their employment duties when they made the speech; (3) the timing of the speech; and (4) the circumstances of the speech.

In a time of unprecedented divisiveness – seek counsel if you are unsure where to draw the line in the sand.