With several key dates for national actions on gun violence fast approaching, and the number of students and educators participating in such actions growing each week, many educators have questions about their rights when they engage in activism and protest on social justice issues.

In a national call with NEA members last week, attorneys with NEA’s Office of General Counsel addressed many of these issues, answering questions we are hearing most often about legal and free speech protections for educators who participate in actions in support of gun safety, DACA, Black Lives Matter@School, and more.

Below are a number of the key questions they addressed:

1. Do educators have First Amendment rights to speak up at school? What about outside of school?

The First Amendment enshrines the right to speak out, to assemble, and to speak without being punished.  But this right is not absolute, and public employees, like public educators, have limited First Amendment rights.

Before speaking out or participating in an action, it is always good to ask yourself two questions: 1) Which hat will you be wearing when you speak – an educator’s or private citizen’s?  And 2) What are you speaking about? Is it a topic of general public concern, or a personal grievance?

Generally, a public educator has the greatest free speech rights when speaking as a private citizen (outside of school and not to students or parents) about issues of public concern. You may have no First Amendment protections at all when speaking as an employee (in school or to students or parents) or about workplace or personal issues outside of school.

Before speaking out or participating in an action, it is always good to ask yourself two questions: 1) Which hat will you be wearing when you speak – an educator’s or private citizen’s?  And 2) What are you speaking about? Is it a topic of general public concern, or a personal grievance?

So, for example, an educator who speaks out about a hot-button political matter such as gun control outside of the school will be protected by the First Amendment. But speaking in class about the same issue would not be protected. Educator speech about personal issues or specific workplace complaints would also not be protected.

2. What other laws might protect educators?  

It’s always a good idea to check with your local or state NEA affiliate about which other laws may apply. Many, but not all, states have teacher tenure laws. Under these laws, your employer has to show cause to discipline or terminate a tenured teacher. Newer teachers and other educators often don’t have these rights, so they may want to act a little more cautiously.

Collective bargaining laws may also protect you when speaking out about issues that relate to the terms and conditions of your employment. So if you work in a state that permits public education collective bargaining, you may have stronger protections to speak out about specific issues in your school or district.

Anti-discrimination laws may also provide additional protection against discipline or termination that is imposed because of your gender, race, ethnicity, religion or other protected characteristic.

All of these protections are typically strongest when educators are speaking on non-instructional time, and not in a classroom environment. You have the greatest protection when you are speaking outside of class to the public, including to public officials, rather than speaking in class or out of class only to students.

Demonstration organized by Teens For Gun Reform, an organization created by students in the Washington DC area, in the wake of the shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Photo by Laurie Shaull.

3. Can my school fire me for participating in a rally or walkout?

As a general rule, walking out of school while on the clock during a school day would not be protected under the First Amendment, because it would not be private citizen speech.

If you walk out without the permission of your school administration, it could be viewed as unprofessional or insubordinate conduct and you could be disciplined or fired. A hostile administration could argue that a widespread educator walkout, unsanctioned by school administrators, amounts to an unlawful strike and subjects educators and their union to penalties.

4. What should educators do if there’s a student walkout?

As an educator, you should plan NOW about what to do in the event of a student walkout. It’s possible your school could provide a secure venue for on-campus activities, in collaboration with the school district, educators and students. This kind of protest activity can provide an excellent educational opportunity for all involved. If your school district has not planned ahead and a student walkout occurs, you should immediately inform your school administration and seek guidance about what should you do.

5. What are educators’ rights when posting on social media?

When posting on social media, you won’t necessarily enjoy First Amendment protections. As with offline public speech, when you post online about issues of public concern, or about public policy, you are more likely to be protected by the First Amendment. But if you post about issues or concerns specific to your school, or about your personal situation, you are less likely to be protected. As with offline public speech, when you post online about issues of public concern, or about public policy, you are more likely to be protected by the First Amendment.

Here are a few examples:

  • If you post to a closed group that is intended for students or parents (i.e. not public), you likely would not be protected.
  • If you post about your personal life, your post would be viewed as a private rather than public concern and you would likely not be protected.
  • If you post something on Facebook complaining about one student in particular, you would likely not be protected because you’re speaking as an employee and not a citizen.
  • If you share a Facebook post or retweet about a public event or action – such as the March 24 action – you would likely be protected.
  • If you post or tweet urging people to vote, or to call their representative to effect a change in public policy, you would likely be protected.

As a general rule, as with offline speech, when posting on social media ask what role are you playing. Are you posting as an educator or as a public citizen? And what are you discussing — private issues or issues of public concern?

6. Can my school discipline or fire me for participating in a march on my free time?

As a general rule, no, you cannot be disciplined for participating in an action, march or rally on your own time, outside of work. This is the kind of activity that is most protected by the First Amendment. This would be considered free speech and assembly about an issue of public concern – the type of speech that has the highest level of protection under the First Amendment.

More than 2,000 Seattle educators wore Black Lives Matter shirts to school in October 2016 to call for equity in education and to assure their students that “Black lives matter in Seattle public schools.”

7. Can my school discipline or fire me for wearing orange to support students and common-sense gun laws? What about wearing a shirt or button to school with an overt political message, for example in support of DACA or Black Lives Matter?  

Your school cannot discipline you for just wearing orange. This would be protected by the First Amendment, and possibly by state labor laws where applicable. NEA members have worn colors to school to support various causes for years. We are calling on members to wear orange for a national gun safety action on April 20, 2018.

Schools can limit or dictate what messages teachers can convey in school, but they cannot discriminate based upon race or gender, and should not pick and choose which political messages are acceptable.

Wearing a shirt or button with an overt message about a specific issue, however, is different. Schools can limit or dictate what messages teachers can convey in school, but they cannot discriminate based upon race or gender, and should not pick and choose which political messages are acceptable.

If your employer disciplines or threatens to discipline you for wearing a shirt or button, you should contact your local or state affiliate right away.

Student speech in school, on the other hand, is more protected than educator speech. Student speech can only be prohibited if it is disruptive. A political message on a student’s shirt is not considered disruptive. If you are asked to discipline a student for wearing a shirt with a specific political message or in support of a specific political organization, you should contact your local or state affiliate for guidance.