Know Your Rights: K-12 Teachers and Staff

Teachers and staff at school have free speech rights, but there are many limitations, especially for those who work in a K-12 setting.

Generally, the First Amendment protects your speech if you are speaking as a private citizen on a matter of public concern. If you are speaking as part of your job duties, however, your speech does not have the same protection.

School districts can regulate employees’ speech made in the course of their duties. What you say or communicate inside the classroom or in school settings is generally considered speech on behalf of the school, so that speech often is not protected by the First Amendment.

A school employer is generally permitted to discipline or dismiss teachers and staff for work-related speech or expressive activities that violate policy. This includes speech in official communications and classroom instruction. Additionally, a school may be able to impose discipline for speech and expressive activities by staff and teachers that is outside of work if the school shows that the speech created a substantial adverse impact on school functioning or part of their job duties.

Teachers and staff cannot be disciplined for speech that is protected by the First Amendment. Some examples of protected versus unprotected speech are provided below.

Examples of speech that is protected include:  

• Attending a protest on the weekend

• Posting on a personal Facebook page an article in support of a specific political candidate

• Publishing an op-ed that is critical of the school board for one of its actions or ideas. (The court viewed the opinion piece as expressing an opinion on a matter of public concern, and protected the teacher’s speech the same as any other member of the public.) 

Examples of speech that is not protected include:

• Posting a “joke” on Facebook about students being lazy. (Courts have viewed this speech as potentially creating an adverse school environment, placing it within the scope of speech that could be disciplined.) 

Other types of situations:

You are instructed not to discuss with students your personal opinion on certain political matters.  

In a classroom discussion on global events, you let your students know that you have recently participated in an anti-war demonstration. This speech may not be protected. Both public and charter school districts have control over classroom content, displays, curriculum, and teaching methods. Courts have found that schools can discipline teachers for departing from the curriculum adopted by the school district, and courts could conclude that inserting personal experience as a protester is such a departure. It is not as clear, however, whether the First Amendment protects teachers who had not been specifically instructed to refrain from expressing personal political beliefs. Some courts have ruled that schools may not discipline teachers for sharing certain controversial words or concepts in class that are related to the district’s curriculum.

A teacher publishes an online book containing explicit sexual passages.

Even though this is speech in the teacher’s private capacity (i.e., not part of official duties, and could be on a matter of public concern) a court might find that the school employee could be disciplined for it. In this kind of situation, courts balance the school’s interests and the school employee’s free speech rights, and evaluate whether the explicit sexual content has a substantial impact on the teacher’s ability to teach and the school’s functioning. 

Speech in the classroom does not have the same First Amendment protection as speech by a private individual outside of a school setting. School districts have the authority to control the content, curriculum, and methodology adopted by school staff. This authority extends to classroom decorations, posters, or displays.  

Courts have recognized that school districts can require staff to remove banners and displays that may be perceived as conveying religious, political, and patriotic views. Sorting out the limits on this authority can be a murky area.

Some courts have ruled that schools cannot discipline teachers or staff for sharing words or concepts that are controversial as long as the school has no legitimate interest in restricting that speech and the speech is related to the curriculum.

Courts have recognized, however, that public schools have broad discretion to control the curriculum and methodologies in classroom instruction if that control is tied to legitimate pedagogical purposes. 

Speech to colleagues during breaks or casual conversations:

Generally, yes. But, if the school can show that your speech would be harmful to your workplace functioning or is disruptive, the First Amendment is not likely to protect you. 

Wearing items that convey political or religious opinions in the classroom:

The right of teachers and school staff to express their views in school on public matters is subject to limits and will depend on the specific facts relevant to each situation. As a general matter, courts have said that if the items are not disruptive, they are protected as free speech.

For example, wearing a necklace with a religious symbol on it is likely protected  expression. On the other hand, courts have ruled that public schools can bar teachers from wearing buttons supporting a current political candidate. T-shirts with political messages or slogans could also be considered “disruptive,” depending on the nature of the message. 

Generally, speech outside of school that is not related to your work and is on a topic of public concern is protected by the First Amendment. If school officials can show that your speech could adversely affect school functions or your effectiveness as a teacher or staff member, however, the First Amendment may not protect you. 

The same rules that apply generally to speech and expression outside of schools apply to social media. Whether school staff may be disciplined for social media posts depends on the situation, including the content of the posts and whether the posts were within the scope of employment. 

If you use social media in connection with your employment duties, the school employer is generally able to regulate the content you post and take disciplinary action. Social media posts unrelated to your job, made in your private capacity, and expressing your beliefs on matters of public concern are generally protected by the First Amendment. As with other speech, you may be disciplined if your posts implicate the school’s legitimate interests and outweigh your interest in the speech.

Examples when the First Amendment may not protect you include if you make comments about students, school, or other work-related matters, or if you engage in conduct on social media that can be shown to impair your functioning as a teacher. 

Example of speech on social media that is protected include: 

• Sharing an article in support of a political candidate on a personal Twitter account 

Examples of speech on social media that is not protected include: 

• Posting derogatory comments about a school administrator on a blog.

• Posting offensive comments about students on a personal Facebook page.

• Communicating with students through social media inappropriately.

• Posting sexually explicit Craigslist ads (a teacher did this, and a court found it to be “immoral conduct” making the teacher unfit to teach). 

In some circumstances, schools are able to gain access to a teacher or staff member’s personal social media accounts. Teachers do have some privacy protections in Maine related to their personal online activities. Maine law (26 M.R.S. 616(1)) prohibits employers from obtaining your passwords or username to your personal online accounts. However, an employer may request your username or password to gain access to an electronic device or an account supplied by the employer and that is used for employer’s business purposes. An employer may also require access to a personal account in the course of an investigation into work-related misconduct. You should also be aware that school authorities may be able to access content that you post on social networking sites without having direct access to your personal profile. Even when you maintain a “private” page on a social networking site, someone with access could repost or share your statements with third parties, including the school. 

Students have a right to equal treatment regardless of race or national origin.

School districts have broad latitude to determine school curricula, but federal law generally prohibits schools from treating students differently based on their race or national origin. Schools must also create an educational environment that is safe for all students, regardless of race or national origin, and ensure they do not allow the existence of a “racially hostile environment.” A racially hostile environment exists when a student is unable to fully participate in their education or school-related activities due to racial harassment. The Department of Education publishes guidance to help schools meet these obligations available here.