Teachers have reported an increase in divisive rhetoric in the classroom surrounding religion, gender, race, and immigration. A 2016 survey conducted by the Southern Poverty Law Center found that 80 percent of teachers surveyed reported feeling fearful for marginalized student groups, and 40 percent of teachers observed derogatory language directed toward minority students. One Tennessee teacher noted that “‘Kill the n*****s’ [was] etched in a school bathroom. … Students have told me they no longer need Spanish—the subject I teach—since Trump is sending all the Mexicans back. A black student was blocked from entering his classroom by two white students chanting, ‘Trump, Trump.’ ” A veteran teacher from Washington recounted, “In over 15 years of teaching high school, this is the first year that swastikas are appearing all over school furniture.” In 2019, swastikas were painted in schools from Maryland to Georgia to California.

John Rodgers and his team at UCLA found that students have experienced increased levels of stress and hostility in U.S. high schools within the last two years as a result of our political climate. The researchers also highlighted that heightened political polarization and incivility may stymie opportunities for students to deliberate productively across lines of difference. As these findings suggest, our charged political climate often extends into the public school classroom, and school officials may not be sure how to respond to these unsettling issues. Do teachers and school leaders have legal rights to address such concerns in a public school? How have courts responded to these matters?

Courts and Educator Expression in the Classroom

School personnel do not shed their First Amendment rights at the schoolhouse gate, but there are limitations. The U.S. Supreme Court has recognized that public employees have a First Amendment right to speak about such matters. When teachers speak about a matter of public concern, the Supreme Court applies a balancing test, weighing the teacher’s interest in expressing their views on public matters against the school board’s interest in providing an efficient educational program. If the teacher’s speech jeopardizes any of the following, the school district will generally prevail: 1) classroom performance, 2) relationships with their immediate supervisor or co-workers, or 3) school operations. This case has generally been applied to teachers’ speech that takes place outside the classroom.

In 2006, public employees’ expression became more limited. In Garcetti v. Ceballos, the U.S. Supreme Court found that expression that was directly related to an employee’s official job responsibilities is not protected under the First Amendment. This case has been applied to teacher speech both inside and outside the classroom. In addition, the case of Hazelwood v. Kuhlmeier—which involved school official censorship of a student newspaper—has been relied on to regulate the content of school-sponsored speech in the classroom so long as the limitations are reasonably related to legitimate pedagogical concerns.

A few federal circuit courts have also addressed when teachers’ classroom expression can be curtailed. In one illustrative decision, the 7th Circuit Court of Appeals for Illinois, Indiana, and Wisconsin held that a teacher had no First Amendment right to say that she “honks for peace” when a student asked her about whether she supported Iraq War protesters who assembled in her community. Upholding the district court’s decision to not renew her contract, the court reasoned that the First Amendment does not allow teachers to advocate viewpoints to a captive audience or to depart from the school-adopted curriculum.

Similarly, the 2nd Circuit Court of Appeals (New York, Connecticut, and Vermont) upheld a decision to dismiss a teacher after she taught a lesson on the Central Park Five that included a discussion about rushing to adverse conclusions about black males. The teacher’s vice principal told her that she needed to teach this lesson in a more “balanced” way because it would “unnecessarily ‘rile up’ black students.” The court observed that “the ultimate authority to determine what manner of speech in the classroom is inappropriate properly rests with the school board, rather than with the federal courts,” and noted that school personnel are best situated to ensure students are not exposed to material inappropriate to their developmental level.

Addressing Significant Issues in the Classroom

In the absence of a U.S. Supreme Court decision that directly addresses the issue of teacher instructional speech in the K–12 context, this topic continues to evolve. It can generally be assumed, however, that restrictions may be placed on teachers expressing their views in class. Courts have consistently recognized that the K–12 classroom is a captive audience of impressionable minds and that teachers may not use their public positions to influence their students about political issues. Teachers can speak about political and social issues in class, but they cross the line when they push their opinions on their students. Teachers must generally remain “politically neutral” when discussing “political” or “controversial” issues in class.

Teachers also have a responsibility to not ignore the fears and concerns of their students. Indeed, many teachers have a natural inclination to help their students feel safe. Any school official addressing swastikas that were spray-painted in a school restroom is the course any reasonable educator would take in that situation. Likewise, students may express distress over recent national policies related to deportation, travel bans, or LGBTQ rights, and an educator might naturally comfort students during these times. These discussions should not be considered political. Also, failing to address harassment in schools can lead to potential hostile environment lawsuits under Title VI (race, color, national origin discrimination), Title IX (sex discrimination), and Title II of the Americans With Disabilities Act (disability discrimination).

School officials might consider teaching matters that may be perceived as “controversial” or “political”—including important social issues—through a “civics education” lens. As discussed by the Campaign to Promote Civic Education, “students should learn that such issues are fundamental to the nature of a democratic society, that they can be discussed in civil and productive ways, that there are strategies for engaging in such discussion, and that these issues deserve both their own and the public’s attention.”

Recommendations

Each case involving teachers’ classroom expression has its own set of facts and should be evaluated on a case-by-case basis. Nevertheless, a few important lessons can be learned:

  • It is necessary for school officials to balance the interests of the teacher as a citizen and the interests of the school.
  • Courts have consistently held that teachers have a great amount of influence over captive K–12 audiences. As such, a classroom should be a place where teachers teach about matters related to the curriculum—sometimes the topics can be controversial. Teachers should be sure not to give their personal opinions.
  • School officials should ensure that policies and administrative guidelines regarding teaching “controversial” or “political” issues are clearly defined and that teachers have access to professional learning to understand how to effectively lead these discussions. Otherwise, teachers are likely to avoid teaching about important topics altogether for fear of being disciplined.
  • School leaders should create environments in which students feel secure at school and incidents that are perceived as harmful to a student’s well-being can be addressed by educators.

Suzanne E. Eckesis a professor at Indiana University. She is a co-author of Principals Avoiding Lawsuits and the immediate past president of the Education Law Association. Francesca Hoffmann is a staff attorney at Indiana Legal Services in Bloomington, IN. She also teaches education law courses at Indiana University.

References

Becker, S. (2019, Mar. 13). High school plastered with swastikas after Holocaust survivor visit. CNN. Retrieved from www.cnn.com/2019/03/12/us/california-swastikas-at-school/index.html.

Campaign for the Civic Mission of Schools (2011). Guardian of democracy: The civic mission of schools. Retrieved from https://civicyouth.org/wp-content/uploads/2011/09/GuardianofDemocracy.pdf.

Capelouta, J.D. (2019, Feb. 4). Swastikas found spray-painted on high school in North Fulton. The Atlanta Journal-Constitution. Retrieved from www.ajc.com/news/crime–law/swastikas-found-spray-painted-high-school-north-fulton/V9vkBlAhhiwV59FxsGehyL.

Garcetti v. Ceballos, 547 U.S. 410 (2006).

Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988).

Hedgpeth, D. (2019, Jan. 22). Swastika spray-painted outside Maryland high school, authorities say. The Washington Post. Retrieved from www.washingtonpost.com/local/public-safety/swastika-spray-painted-outside-maryland-high-school-authorities-say/2019/01/22/368e18cc-1e66-11e9-8b59-0a28f2191131_story.html.

Lee-Walker v. N.Y.C. Dep’t of Educ., 712 F. App’x 43 (2nd Cir. 2017).

Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007).

Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

Rogers, J. (2017, Oct.). Teaching and learning in the age of Trump: Increasing stress and hostility in America’s high schools. UCLA’s Institute for Democracy, Education, and Access. Retrieved from https://idea.gseis.ucla.edu/publications/teaching-and-learning-in-age-of-trump.

Southern Poverty Law Center (2016). The Trump effect: The impact of the 2016 presidential election on our nation’s schools. Retrieved from https://www.splcenter.org/sites/default/files/the_trump_effect.pdf.

Walker, T. (2018, Dec. 11). ‘Education is political’: Neutrality in the classroom shortchanges students. NEAToday. Retrieved from http://neatoday.org/2018/12/11/political-neutrality-in-the-classroom-shortchanges-students.