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A Refresher on an Educator’s Right to Express an Opinion

Association of Texas Professional Educators
Association of Texas Professional Educators

Date Posted: 6/23/2020

This is a turbulent time in our nation’s history. No one needs to be reminded of the issues swirling at the local, state, and national level or that tempers are running high. Many educators may wonder what their rights are regarding expressing their own opinions about the issues confronting Texas and our country.
The answer is complicated. Teachers and other school district employees are citizens of the United States and have legal protections regarding expressing their opinion. Most important in the context of expressing an opinion on public issues is the right to expression protected by the First Amendment to the U.S. Constitution. Public school teachers and other public school personnel do not lose their First Amendment rights. But First Amendment protections are not absolute and do not apply in every situation. It is important for everyone to know these limits when deciding whether to express an opinion or how to express an opinion, whether on social media or speaking to a group of co-workers.
First, the U.S. Supreme Court has ruled the First Amendment does not apply when a government employee (all public school employees are government employees) comments on a matter involving their own job duties. The First Amendment only applies to comments made as a citizen. Teachers need to be aware that if their comment relates to their job, supervisor(s), campus, or district leadership, the First Amendment may not apply.  
As a teacher or other school district employee, you are not just a citizen, though. In addition, even when the First Amendment does apply, the U.S. Supreme Court has ruled that there is a “balancing test” where the public employee’s right to express an opinion is weighed against the disruption at school or work that results from that opinion. For instance, if the teacher’s comment causes a substantial disruption at school, that teacher could experience serious negative consequences. For example, a district might have a legal basis to take employment action if your comments interfered substantially with your ability to teach students successfully or your ability to get along well with colleagues, supervisors, and students’ parents.
As a practical matter, a teacher or other employee may want to consider limiting access to social media accounts to only their close friends and family members to avoid the situation where a more distant “friend” decides to report the teacher to their employer. But teachers need to be aware that if a friend shares the post and disruption ensues, there may again be employment consequences. Also, remember that even something as casual as a “like” on a controversial meme may show up across Facebook or Instagram, so there is really no expectation of privacy—no matter how strict your settings are.
Finally, it is important for teachers and other district personnel to be aware of their community standards and expectations. Again, a teacher can experience serious consequences simply because of the community response to their expression. The important issue is not what was said but the reaction to what was said. This is something the teacher will not be able to control once their comment is “out there.” Because the reaction to the comment is at least as important or potentially more important than the comment itself, everyone should take a moment to think what that reaction may be before exercising their right to express their opinion on a controversial topic.
The legal information provided here is accurate as of the date of publication. It is provided for general purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Eligible ATPE members may contact the ATPE Member Legal Services Department. June 2020.