Public Educators and the First Amendment

On Friday, Sept. 12, Texas Education Agency (TEA) Commissioner Mike Morath sent a letter to superintendents directing them to report instances of public school educators sharing “reprehensible and inappropriate content on social media related to the assassination of Charlie Kirk” to TEA’s Misconduct Reporting Portal for referral to the TEA Educator Investigations Division.

ATPE is aware of educators who have already experienced negative employment action for posting social media content related to Kirk. In this communication, we want to both touch on the nuances of the First Amendment as it relates to public employees and explain the support available to ATPE members. ATPE members’ reactions to this communication will be as varied as their own individual beliefs. As your professional association, ATPE has a duty to inform you of the reality of the law and the political climate in which you are teaching.

ATPE denounces the act of violence that took Mr. Kirk’s life. We extend our deepest sympathies to his family and friends, as well as to the many college students and members of the public who witnessed a horrific act of violence firsthand. We also recognize that Mr. Kirk’s political work elicited strong reactions across the political spectrum.

The First Amendment and Public Employees

As we have shared in past articles regarding educators’ political speech, public school educators and personnel do not have unfettered free speech rights in the workplace. A public school’s interest, such as an effective learning environment, may be weighed against an educator’s right to free speech. A school employer may take negative employment action when an employee speaks as a public employee rather than as a private citizen regarding a matter of public concern. However, if an employee’s private speech is not in the scope of ordinary duties and does not seek to convey a government-created message, the employee’s speech may be protected.

When performing job duties, such as providing instruction or attending meetings, public school employees represent the government, and the government can limit employee speech when the educator is acting within the scope of employment. In those settings, schools can require that employees remain neutral or act without bias when it comes to controversial topics.

When it comes to personal expression outside the workplace on matters of public concern, including social media posts, schools may only limit speech if it substantially disrupts the learning or working environment. To give a few examples, if the speech interferes with the school’s interests due to numerous parent complaints, multiple requests for student removal, or negative and seriously disruptive discussion within the school community, a school may limit speech and sometimes may take negative employment action.

The Support Available Through ATPE

Whether these educators’ social media posts are “disruptive to the learning or working environment” will be a subjective matter. It will depend on the thoughts and feelings of the individual receiving the content, community standards, and what was actually said in the communication. What is “disruptive to the learning or working environment” in one community might not be in another. Similarly, speech can be distasteful to a recipient of the speech without being disruptive. In other words, even if you post something that you reasonably believe to be benign, someone else reading your post may consider it to be disruptive or in poor taste.

ATPE’s member benefits program provides individual legal representation through our staff attorneys in the Member Legal Services Department and the panel attorneys approved under ATPE’s insurance policy. Eligible members who are experiencing negative employment action within the scope of the policy and contact ATPE may receive individual legal representation under the policy.*

The facts of these cases involving Texas public educators will vary. There is strong legal protection for free speech on matters of public concern, unless it incites violence or results in a substantial disruption to a teacher’s ability to carry out the educational mission effectively. (It is important to note that inciting violence is different than commenting on past violence.)

Educators must always remember, though, that in addition to their First Amendment rights, they are generally held to a high ethical standard. Educators working in Texas public schools are subject to a Code of Ethics (COE) that is enshrined in the Texas Administrative Code and is the basis for many adverse employment actions taken against educators. Violations of the COE can lead to disciplinary actions, including revocation of one’s teaching certificate, and state officials have often taken a broad view of the COE’s applicability even to conduct occurring outside of an educator’s official duties.

It is prudent for educators to be cautious about making controversial posts or statements that may draw unwanted negative attention to themselves or to their school district because such comments may, in specific cases, be deemed disruptive of the learning or working environment and, ultimately, result in negative employment action.

An educator should not lose their personal free speech rights simply because the conversation in which they are engaging as a private citizen is a political topic—however, as we have seen in the past few days and throughout American history, there are personal and professional risks involved in making political speech, and the risks will depend on the predominant political climate at the time. We want you to have your eyes wide open about this.

*Terms and conditions apply. See atpe.org/protection for details.

The legal information provided here is accurate as of the date of publication. It is provided here for informative purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Please note: Rights based on the Texas Education Code may not apply to all. Many Texas Education Code provisions do not apply to public charter schools, and public school districts may have opted out of individual provisions through a District of Innovation plan. Eligible ATPE members may contact the ATPE Member Legal Services Department.