COERCION, CONSCIENCE, AND THE
A Legal Guide for Public Schools on the
Regulation of Student and Employee Speech
First Amendment
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a
redress of grievances.”
—First Amendment to the U.S. Constitution
COERCION, CONSCIENCE, AND THE
A Legal Guide for Public Schools on the
Regulation of Student and Employee Speech
Published January 2018
First Amendment
Copyright © 2018 National School Boards Association. All rights reserved.
Table of Contents
Introduction: Finding Balance ........................................................ 1
A. Students ..............................................................................................2
1. Do Students Have a Constitutional Right to Free Speech at School? ............................................................. 2
2. Is a Student’s Right to Free Speech at School Absolute? ................................................................................ 2
3. Is Protest a Form of Protected Student Speech? ............................................................................................. 3
4. Can a Student Refuse to Stand for the Pledge of Allegiance or National Anthem? ........................................ 4
5. What if My State’s Law Requires Students to Stand for the Pledge? .............................................................. 4
6. What if a Student Wants to “Take a Knee” During the National Anthem? .......................................................4
7. Can a School Require a Student to Remain in a Locker Room or Other Alternative Area in Lieu of
Protesting Until the National Anthem or Pledge of Allegiance is Over? .......................................................... 6
8. Can a School Regulate Student Speech at a School-Sponsored Activity, Like a Football Game? ..................6
9. May an Athletic Association Require in its “Code of Conduct” or Rulebook that Students Refrain from
Protesting as a Condition of Participating in Extracurricular Activities? ........................................................6
10. Can a School Discipline or Bar a Student from Participating in an Extracurricular Activity for Failing to
Comply with School Rules that Regulate Expression?..................................................................................... 7
11. Doesn’t Wearing a School or Team Uniform Mean the Student Represents the School, and if so, Shouldn’t
a School Get to Say What a Student Can or Cannot do While Representing the School? .............................. 7
12. May a School Discipline a Student for Inciting Other Students to Protest? ...................................................8
13. Is there a Dierence Between Religious Speech and Political Speech? ..........................................................8
14. What is a Sincerely Held Religious Belief, and are Expressions of Such Beliefs Protected by the
United States Constitution? .............................................................................................................................8
15. What if a Student Doesn’t Label his Speech as Religious or Political? ...........................................................8
16. Can Schools Place Restrictions on Speech that is Otherwise Protected by the Constitution? ..................... 9
17. Can Schools Discipline Students for Protests that Result in Harm to Public/School Property? ................... 9
B. Employees .......................................................................................... 11
1. Do Employees have First Amendment Rights Equal to Those of Students? ..................................................11
2. What are the Limitations of the First Amendment Rights of Employees? .....................................................11
3. Does it Matter if the Employee is a Teacher or Other School-Related Employee, Like a Bus Driver or
Cafeteria Worker? ........................................................................................................................................... 12
4. May a School District Limit an Employee’s Religious Expression at School? ............................................... 12
5. When May a School District Regulate Employee Proselytizing and Other Expression
of Religious Belief? ...........................................................................................................................................13
6. What is Religious Garb? Are Schools Allowed to Regulate Employees’ Religious Attire or Jewelry? .............13
7. May a School District Regulate Employee Expression that Occurs O-Campus and Not at a School Activity?
For Example, May a ......School Address Speech or Expression of an Employee Who Attends a Controversial
Rally or is Involved with Controversial Causes? ..............................................................................................14
8. Can a School District Discipline an Employee for Posting Content on Social Media? ...................................14
9. Can Schools Require Employees to Stand for the National Anthem or to Recite the Pledge of Allegiance? ......... 15
Closing: Toward the Teachable Moment ......................................16
COERCION, CONSCIENCE, AND THE FIRST AMENDMENT
1
Introduction: Finding Balance
In politically-charged times such as these, as the public raises its many voices on social issues
like police shootings of unarmed African-American men, sexual harassment and violence, and
immigration, we witness the First Amendment at work. Through its protections, the public
expresses and debates ideas, lobbies policy-makers, and informs itself through the media,
producing a robust dialogue and rich resource for democratic decision-making. People march
in the streets, and spread their message far and wide through modern media. This market-
place of ideas is just what our founders had in mind, and why they protected the rights of free
speech, press, petition, assembly and religion so prominently in our Constitution. And courts
interpreting these rights often have bolstered them in the face of government attempts to
restrict them.
Public schools, as units of government, must follow the First Amendment’s guidelines. Students
and employees do not check their First Amendment rights at the schoolhouse gate.
1
But a public
school is not a public street. Schools have a duty, and recognized authority, to limit expression to
maintain order, to protect the safety of the school community, and to provide a nurturing envi-
ronment for learning. In today’s climate, as political and social debates nd their way into school
communities, school ocials face the often-daunting challenge of balancing the constitutional
rights of students and employees with their responsibility to maintain a safe and orderly envi-
ronment for learning.
It is not always easy to determine which interest —individual free speech rights or collective
order—should outweigh the other in a given situation. If student-athletes wish to “take a knee”
during the pre-game National Anthem, modeling protests they’ve seen NFL players make, may
schools prevent that? What if a teacher, or coach, engages in similar protest during the Anthem?
Does it matter who the protester is (student, teacher, bus driver)? Does it matter where the
speech takes place (on-campus or o)?
This guide raises questions school ocials may be asking as they approach student and employ-
ee speech in politically-charged environments. The answers provided here should help public
school boards get a sense of the legal framework that applies to student and employee speech,
and how that framework might be applied in sticky, real-life situations. As you consider your
own district’s policies and practices, we urge you to consult with a member of NSBA’s Council of
School Attorneys, as well as your state school boards association. We hope the guide ultimately
will encourage the rich and thoughtful conversations envisioned by our founders as you develop
policy to reect community values and legal standards.
2
A. Students
1
Do students have a constitutional right to free speech at school?*
Yes. Students have a constitutional right to free speech at school, but schools may regulate
speech that interferes with the operations of the school or infringes upon the rights of others.
The U.S. Supreme Court rst recognized students’ free speech rights in Tinker v. Des Moines
Indep. Comm. Sch. Dist.
2
In Tinker, three public school students in Des Moines, Iowa, were
suspended from school for wearing black armbands to protest the United States government’s
policy in Vietnam. The students sued the school district, and the Supreme Court ultimately ruled
in favor of the students, saying that schools cannot regulate student speech unless it materially
or substantially interferes with the operations of the school or impinges on the rights of others.
2
Is a student’s right to free speech at school absolute?
No. Schools can also regulate speech when the school reasonably forecasts material disruption.
Because courts most frequently apply the Tinker standard when deciding whether a public
school violated student free speech rights, it is helpful for school ocials to be familiar with the
type of circumstances that courts have identied as constituting “material and substantial dis-
ruption” or “impingement” of the rights of others.
One court decided that a school district’s action banning a student from wearing clothing that
displayed the Confederate ag at school
3
was permissible. Citing examples of past racial in-
cidents that had occurred in the school, the court concluded that school ocials could have
reasonably foreseen that allowing students to wear clothing that displayed the Confederate ag
at school would materially and substantially disrupt the work and discipline of the school.
4
In
another case, a court ruled that administrators did not violate a student’s First Amendment right
to freedom of speech when they prohibited him from expressing support for a friend accused
of shooting a police ocer, because of its potential to incite gang violence.
5
In that case, the
court explained that “past incidents of gang violence and increased tension caused by intimida-
tion from gang
members served as justication for the ban of a slogan clearly associated with a
gang.”
6
In yet another case, a court held that a school could regulate student speech if it had rea-
son to think that the speech would lead to a decline in student test scores, an upsurge in truancy,
or other symptoms of a sick school—symptoms, therefore, of substantial disruption.
7
Far fewer courts have addressed the extent to which schools may regulate student speech based on
its impingement on the rights of others.
8
In a case where a student wrote a string of increasingly
violent and threatening instant messages bragging about his weapons and threatening to shoot spe-
cic classmates, a court did not hesitate to rule that this type of violent threat impinges on the rights
of others.
9
At least one court
10
has suggested that protecting students from harassment under Title
*Throughout this guide, “schools” refers to K-12 public schools, as First Amendment principles apply to action by government.
COERCION, CONSCIENCE, AND THE FIRST AMENDMENT
3
IX would satisfy “the interference with the
rights of others” requirement,
11
while another
has permitted school ocials to prohibit stu-
dents from wearing shirts with messages that
condemn and denigrate other students on the
basis of their sexual orientation.
12
Since Tinker, the Supreme Court has ex-
panded the areas in which schools may reg-
ulate student speech to include lewd speech,
school-sponsored speech (as in school news-
papers) and speech that promotes illegal
drug use or criminal activity.
3
Is protest a form of protected
student speech?
Yes. Protest is a recognized form of protect-
ed student speech. In Tinker, the student
speech/expression in question involved students wearing black arm bands in protest of the
U.S. government’s military involvement in Vietnam.
16
Courts, including the Ninth Circuit
Court of Appeals, have noted that the First Amendment applies with “particular force” to pro-
test activities.
17
The Supreme Court has also observed that speech protesting “racial discrimi-
nation is essential political speech lying at the core of the First Amendment.”
18
Because the law favors protecting political speech, courts generally will require a critical exam-
ination of the stated reasons for restricting it.
An example is the case involving “I Heart Boobies”
bracelets,
19
in which middle school students wore bracelets imprinted with the phrase to school
for several weeks to promote cancer awareness and the need for research funds. When some
teachers complained that the message on the bracelets was lewd, the school forbade the students
from wearing them. Some students refused to remove the bracelets on breast cancer awareness
day, and the school imposed in-house suspension. The parents sued, alleging that the school had
Tinker
and Beyond—School ocials
may regulate student speech that:
• materially disrupts the school setting or
interferes with the right of others;
• is lewd, vulgar or obscene on the ground
that such speech undermines “the school’s
basic educational mission;”
13
• is school-sponsored speech, provided their
actions are reasonably related to legitimate
pedagogical concerns;
14
or
• promotes activities that are illegal, such as
illegal drug use.
15
“But conduct by the student, in class or out of it, which for any reason—
whether it stems from time, place, or type of behavior —materially
disrupts classwork or involves substantial disorder or invasion of the
rights of others is, of course, not immunized by the constitutional
guarantee of freedom of speech.”
—
Tinker v. Des Moines Ind. Comm. Sch. Dist.
(1969)
4
violated their students’ First Amendment rights. The Third Circuit Court of Appeals ruled in fa-
vor of the students, nding that the bracelets were not lewd, as they commented on social issues,
and that wearing them did not result in a disruptive school environment. The court went to great
lengths to explain the reasoning for its decision, which illustrates how the law favors protection
of political speech: if student speech is only ambiguously (not plainly) lewd, school ocials can-
not restrict it, if it can plausibly be interpreted as political or social speech.
20
4
Can a student refuse to stand for the Pledge of Allegiance or National Anthem?
Yes. Students can refuse to stand for the Pledge of Allegiance. In 1943, the Supreme Court ruled
in West Virginia State Bd. of Educ. v. Barnette that a West Virginia school board’s mandatory
ag salute regulation violated students’ First Amendment right to freedom of speech.
21
“If there
is any xed star in our constitutional constellation,” the Court said, “it is that no ocial, high or
petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein.”
22
5
What if my state’s law
requires
students to stand for the Pledge or Anthem?
Lower courts that have addressed the issue have ruled that state laws requiring students to stand
for the Pledge of Allegiance or National Anthem are unenforceable. To meet constitutional stan-
dards, participation in the exercises must be voluntary.
23
6
What if a student wants to “take a knee” during the National Anthem?
Based on the Court’s rulings in Barnette (see Q.4 above) and Tinker, students likely have a pro-
tected First Amendment right to engage in protest by “taking a knee” while the National Anthem
is being played, unless such speech would substantially disrupt school operations. Some courts,
including the U.S. Supreme Court, have suggested that student athletes and other participants
in extracurricular activities may subject themselves to a higher level of regulation than non-par-
ticipants, however.
24
Even so, when weighing the balance between curtailing a First Amendment
“If there is any xed star in our constitutional constellation, it is that no
ocial, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion, or force citizens to
confess by word or act their faith therein.”
— West Virginia State Bd. of Educ. v. Barnette (1943)
COERCION, CONSCIENCE, AND THE FIRST AMENDMENT
5
right and school policy, at least one recent decision suggests the scales tip in favor of protecting
student expression. In V.A. v. San Pasqual Valley Unied School District, a federal district court
ruled in favor a varsity football player who knelt during the playing of the National Anthem to
protest racial injustice. In response to parental concerns about the potential for violence, the su-
perintendent had prohibited students from engaging in certain forms of protest including kneel-
ing during the National Anthem at athletic events at any home or away games, under penalty
of removal from the team and subsequent teams during the school year. The court specically
found the student’s kneeling to constitute the kind of speech that the school could not prohibit
unless it demonstrated the kneeling would cause a substantial disruption or interfere with the
rights of others.
25
As public school students mirror protests by professional athletes who have “taken a knee”
during the playing of the National Anthem, situations like San Pasqual Valley are sure to arise
more often. The following examples highlight the varying approaches of school districts across
the country to this socio-political phenomenon.
Texas. One school board president in Texas defended members of the girls’ volleyball team
and cheerleading squad who refused to stand during the National Anthem at games in protest
of recent shootings of African-American men by the police. “Yes, there are possibly greater ways
to get that message across; however, we are sitting here in 2016 and the messages that were
brought forth in the ‘60s were somehow lost in translation,” explained the board president.
“Yeah, we can criticize the method but we have to listen to the message.”
26
Minnesota. A Minnesota school district issued a similar statement of support after an entire
high school volleyball team knelt in a line before a home match and seven members of a high
school football team did the same at their game. The school district’s statement said administra-
tors “respect our students’ right to freedom of speech as long as their actions do not threaten the
safety and security of others.”
27
But not all school districts agree that student-athletes “taking a knee” during the Anthem should
be allowed.
Louisiana. The superintendent of schools in a Louisiana school district issued a letter stating
that student athletes were expected to stand for the Anthem. “It is a choice for students to par-
ticipate in extracurricular activities, not a right, and we at Bossier Schools feel strongly that our
teams and organizations should stand in unity to honor our nation’s military and veterans.” A
high school principal in the district sent a letter to athletes and parents, saying athletes were
required to stand “in a respectful manner” during the Anthem. “Failure to comply will result in
loss of playing time and/or participation as directed by the head coach and principal. Continued
failure to comply will result in removal from the team.”
28
6
School leaders should consider carefully any requests by students wishing to “take a knee”
during the National Anthem, or to protest in some other non-disruptive manner. Work with
your NSBA Council of School Attorneys member and your state school boards association to
arrive at policy decisions that balance a student’s right to free speech or expression with the
school’s interest in maintaining a safe environment free from disruption, and make sure to
implement the policy even-handedly. Lastly, consider the benets of the teachable moment in
minimizing the risks of litigation, while conveying important civics lessons where students can
discuss the value of political expression, its implications, and the importance of selecting the
forum in which the message is conveyed.
7
Can a school require a student to remain in a locker room or other alternative area in
lieu of protesting until the National Anthem or Pledge of Allegiance is over?
Likely not, unless school ocials have reasonably forecasted disruption or interference with
the rights of others. For reasons explained in Q.5 and Q.6 above, a school in most cases cannot
require students who wish to protest during the Pledge of Allegiance or National Anthem to
remain in a locker room or remove themselves from a setting such as a classroom to a hallway or
other alternative area until the Pledge or Anthem is completed.
As the Supreme Court noted in Tinker, a protest is a form of political speech that cannot be
curtailed or regulated unless it is disruptive or impinges on the rights of others. In order to avoid
a constitutional violation, schools must generally show that the potential for disruption and the
harm to the rights of others is real, likely, and more than speculative.
8
Can a school regulate student speech at a school-sponsored activity, like a
football game?
Yes, school-sponsored activities are still considered to be within the school setting.
9
May an athletic association require in its “code of conduct” or rulebook that students
refrain from protesting as a condition of participating in extracurricular athletics?
It depends on whether the athletic association is considered a “state actor.” The provisions of
the First Amendment only apply to public entities. If an athletic association is private, it could
require students to adhere to a code of conduct that prohibits protesting as a condition of par-
ticipating in extracurricular athletics. However, if the athletic association were considered to be
an arm of the state, it would need to adhere to the same First Amendment requirements as any
other public entity.
This specic issue was addressed in Brentwood Academy v. Tennessee Secondary Sch. Athlet-
ic Ass’n, in which a school sued a not-for-prot statewide interscholastic athletic organization
regulating competition among public and private schools in Tennessee for violating its First
Amendment rights. The United States Supreme Court found that the close nexus between the
COERCION, CONSCIENCE, AND THE FIRST AMENDMENT
7
state and the athletic association (State ocials were pervasively entwined in the athletic as-
sociation’s structure.) meant the association was a state actor for First Amendment purposes.
Therefore, when the athletic association restricted the school’s speech, it did so as a state actor
and violated the school’s First Amendment rights.
29
10
Can a school discipline or bar a student from participating in an extracurricular
activity for failing to comply with school rules that regulate expression?
Participating in extracurricular athletics or other activities is a privilege. Courts have held that
although students have a constitutional right to engage in educational activities, they do not
have a similar right to participate in extracurricular activities.
30
And, the Supreme Court has
indicated that students who voluntarily submit themselves for participation in extracurricular
activities like athletics, can also be held to higher standards of conduct and greater regula-
tion.
31
However, no legal precedent expressly holds that a student can be disciplined or barred
from participating in an extracurricular activity for failing to comply with school rules that
regulate speech or expression.
One federal appellate court has issued a decision on this issue. In Doe v. Silsbee Indep.
Sch. Dist., the Fifth Circuit Court of Appeals rejected a high school cheerleader’s claim that
school officials violated her free speech rights when they dismissed her from the cheer-
leading squad after she refused to cheer for a member of the boys’ basketball team, whom
she had accused of sexually assaulting her.
32
The court stated that even assuming that the
student’s refusal to cheer was protected speech, the First Amendment did not require the
school district to promote the student’s message by allowing her to cheer as she saw fit. The
court further stated that her refusal to cheer constituted a substantial interference with the
work of the school that could be regulated by the school. Caution should be taken when rely-
ing on Doe, however, because as an unpublished decision, the ruling may have limited prec-
edential value.
33
School districts would do well to confer with their NSBA Council of School
Attorneys member and state school boards association when setting conditions for student
participation in extracurricular activities that may implicate freedom of speech.
11
Doesn’t wearing a school or team uniform mean the student represents the school,
and if so, shouldn’t a school get to say what a student can or cannot do while
representing the school?
Yes, a student is generally considered to be representing a school when the student is a member
of a team or involved in an activity that is sponsored by the school. Only one federal appellate
court appears to have ruled on the issue of whether a school gets to say what a student can or
cannot do while the student is representing the school.
According to the Sixth Circuit Court of Appeals, in Lowery v. Euverard,
34
“[r]estrictions that
would be inappropriate for the student body at large may be appropriate in the context of vol-
8
untary athletic programs.”
35
Even so, schools will likely have to show that restricting the student
athlete’s speech or behavior is appropriate, because it will reasonably result in disruption.
36
As a general rule, a school can regulate the conduct of students who represent it at sporting
events or other o-campus events. However, even though a school can regulate student behav-
ior, it should be cautious about attempting to regulate expressive behavior, such as peaceful
protests, which could be looked upon as pure political speech or expression. Courts protect the
right to speak on political and social issues more than other types of expression, despite school
ocials’ signicant authority to regulate the conduct of extracurricular participants.
12
May a school discipline a student for inciting other students to protest?
A school could, in some circumstances, constitutionally discipline a student for inciting other students
to protest and for planning a mass protest in advance. The key issue is whether the school’s regulation
of the student’s speech meets the Tinker standard. If the school reasonably could forecast that the
mass protest, e.g., walkout, sit-in, would result in substantial disruption, then school ocials would be
able to discipline that student without violating his/her First Amendment speech rights. One federal
appellate court upheld school ocials’ decision to discipline a student—by restricting her from partic-
ipation in student government—who had encouraged other students to deluge the district oce with
complaints about the cancellation of a popular event.
37
13
Is there a dierence between religious speech and political speech?
From a First Amendment Free Speech Clause standpoint, religious speech and political speech
are protected similarly. Schools should note, however, that the First Amendment religion claus-
es give individuals the right of free exercise of religion, and prohibit government from estab-
lishing religion. Schools must permit students to exercise their religion, but may not endorse or
promote one religion over another.
38
14
What is a sincerely held religious belief, and are expressions of such beliefs protected
by the United States Constitution?
Yes, the Constitution protects expression of sincerely held religious beliefs, with some limita-
tions. According to the U.S. Supreme Court in U.S. v. Seeger, a sincerely held religious belief is
“a conviction based upon religious training and belief.”
39
The Supreme Court added in Welsh v.
U.S. that for expression of such beliefs to be protected by the United States Constitution they
must be “held with the strength of traditional religious convictions.”
40
15
What if a student doesn’t label his speech religious or political?
As a general rule, students are not required to signal the type of speech/expression in which they
are engaging to enjoy First Amendment protection.
COERCION, CONSCIENCE, AND THE FIRST AMENDMENT
9
16
Can schools place restrictions on speech that is otherwise protected by
the Constitution?
Yes, under certain circumstances. Schools can place reasonable time, place and manner restric-
tions on the exercise of free speech in order to avoid disruption.
41
In such situations, courts will
consider to what extent the school has an “open” or “closed” forum, or something in-between.
In closed forums, schools have a large degree of control over the kinds of expression they can
exclude. Most schools create limited open forums, in which they allow expression of a variety of
points of view not endorsed by the school, but place certain recognized time, place and manner
limitations on that expression. Schools often create a limited open forum when creating polic-
es for student-led extracurricular clubs and distribution of literature of non-school sponsored
groups. Schools may consider criteria like appropriateness to the school setting for regulating
expression in these limited public forums, but when schools begin restricting expression based
on viewpoint, courts will generally rule against them in the absence of a legitimate reason for the
regulation. A complete discussion of limited public forums is beyond the scope of this publica-
tion, but schools would be well-served by conferring with an NSBA Council of School Attorneys
member and state school boards association when determining school board policies and prac-
tices in this area.
17
Can schools discipline students for protests that result in harm to public/
school property?
Yes. Vandalism and other criminal activity is not protected by the First Amendment. Schools can
punish students for protests or other actions that result in harm to school or other public property.
10
Applying First Amendment Free Speech Standards for Students
When assessing whether a public school can regulate an individual instance of student speech:
1. Determine whether student expression is protected speech, such as a protest, or is political or
religious in nature.
2. If the expression is protected, ask whether the student expression is likely to cause
material disruption.
a. Identify the disruption.
b. Determine whether the disruption is actual or speculative.
c. Be clear about which past facts support a forecast of disruption.
3. If the expression is not likely to cause material disruption, determine whether the student
expression is lewd, school-sponsored (in a student newspaper or school blog), or harmful
(i.e., promotes criminal behavior or drug use). If so, schools have some leeway to regulate the
expression.
When examining district policy on student free speech:
1. Review school policies and practices to ensure they do not compel students to engage in an
expression of a particular political creed.
2. Consider the teachable moment as an alternative to discipline.
3. Identify the community values and lead the community in dialogue about how those are reected in
the district’s policies.
COERCION, CONSCIENCE, AND THE FIRST AMENDMENT
11
B. Employees
1
Do school employees have First Amendment rights equal to those of students?
School employees have First Amendment rights within the workplace, but the contours of those
rights dier from those of students. When courts consider student speech rights, they tend to
focus on schools’ ability to maintain safe and productive learning environments. When consid-
ering employee speech rights, courts look at whether the employee is speaking as a citizen on a
matter of public concern; and they look at the district’s interest in directing the work of sta and
maintaining the integrity of the workplace.
2
What are the limitations on the First Amendment rights of employees?
School district employee speech is protected under the First Amendment if the employee is
speaking as a private citizen on a matter of public concern and the employee’s interest in com-
menting on matters of public concern outweighs the interests of the school district in promoting
the eciency of its operations or services. A teacher’s letter to a local newspaper about a de-
feated school board proposal to raise taxes, for example, is generally protected speech.
42
Courts
determine the interference with the employer’s operations by looking at factors like:
• whether the speech interfered with the employee’s performance;
• whether the speech created disharmony among the employee’s co-workers;
• whether the speech undercut an immediate supervisor’s authority over the employee; and
• whether the speech would destroy the relationship of loyalty and trust required of the
employee.
43
When “a public employee speaks not as a citizen upon matters of public concern, but instead as
an employee upon matters only of personal interest,” the employee enjoys the least amount of
speech protection.
44
For instance, a school district could discipline an employee for circulating
a questionnaire that deals only with personal and internal oce issues (rather than matters of
great public concern).
45
And, “when public employees make statements pursuant to their ocial duties, the employees are
not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.”
46
In other words, school districts can hold teachers and
other employees to certain standards when those employees speak on behalf of the school district.
“When public employees make statements pursuant to their ocial
duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications
from employer discipline.”
47
12
Applying First Amendment Free Speech Standards for Employees
When assessing whether a public school can regulate an individual instance of employee speech, ask:
• Is the employee speaking as a private citizen or in her capacity as a school district employee,
pursuant to her ocial duties. If she is speaking as an employee, there is more authority to regulate
the speech.
• Is the employee speaking about a matter of public concern or a matter of personal interest? (Note:
Not all employee speech about his/her employment is unprotected “employee speech.”) If she is
speaking on a matter of personal interest, there is more authority to regulate the speech.
• Does the employee’s speech interfere with the district’s orderly operations (i.e., Does the speech impair
workplace discipline? Aect harmony among co-workers? Result in loss of condence/loyalty?) If so,
there is more authority to regulate the speech.
3
Does it matter if the employee is a teacher or other school-related employee, like a
bus driver or cafeteria worker?
No. The Supreme Court’s framework for government employee free speech rights applies to all
public employees.
While courts tend not to distinguish between the First Amendment rights of teachers and
school-related personnel, the employee’s role within the school system is relevant when a court
balances the interests of the district against the employee’s right to speak. Many courts have ruled
that school teachers are role models and as such are held to a higher standard of speech or con-
duct than non-certicated employees, including custodians, bus drivers and food service workers.
Similarly, a federal court of appeals noted that schools confer on school counselors an “inordinate
amount of trust and authority,” and it upheld a district’s decision to re a school counselor who
had published a highly sexualized book on relationships. The court agreed that the district had
reasonably assumed that the book would interfere with the school’s learning environment. In this
instance, the school district’s interest in protecting the integrity of counseling services at the school
“dwarfed” the counselor’s interest in publishing the book.
48
4
May a school district limit an employee’s religious expression at school?
While public schools have a constitutional duty under the First Amendment’s Free Exercise
Clause to accommodate the religious beliefs of both students and employees, they are prohibited
by the First Amendment’s Establishment Clause from endorsing or promoting a specic religion.
Therefore, public schools have not just the authority, but the obligation, to restrict employees
from proselytizing students.
COERCION, CONSCIENCE, AND THE FIRST AMENDMENT
13
For instance, a federal appellate court held that a California school district did not violate a high
school teacher’s free speech rights when the school’s principal ordered the teacher to remove banners
containing religious references displayed in his classroom.
49
Because teachers hold positions of trust
and authority, and interact with “impressionable young minds,” they act ocially when at school or
a school function, in the general presence of students.
50
When weighing a public employee’s rights to
express a religious belief in the workplace over the rights of schools to enforce speech rules, courts
often allow restriction of the employee’s rights in part because students are a “captive audience.”
51
5
When may a school district regulate employee proselytizing and other expression of
religious belief?
Public schools can constitutionally restrict school district employees from proselytizing stu-
dents. But, religious expression directed at non-students is a dierent matter because it is a
form of religious expression. According to the U.S. Equal Employment Opportunity Commission
(EEOC), both public and private, employers “should not try to suppress all religious expression
in the workplace,”
52
but need only accommodate religious expression to the “extent that they can
do so without undue hardship on the operation of the business.”
53
“In determining whether permitting an employee to pray, proselytize, or engage in other forms
of religiously oriented expression in the workplace would pose an undue hardship,” the EEOC
says, “relevant considerations may include the eect such expression has on co-workers, cus-
tomers, or business operations…. An employer can restrict religious expression where it would
cause customers or co-workers reasonably to perceive [the expression to be] the employer’s own
message, or where the item or message in question is harassing or otherwise disruptive.”
54
6
What is religious garb? Are schools allowed to regulate employees’ religious attire
or jewelry?
Although there is no generally-accepted legal denition of apparel that constitutes religious
garb, one federal court in Pennsylvania has provided a helpful description. The court identied
three categories of religious attire:
55
• The rst is attire that is religious on its face and worn for religious reasons. Examples
include robes worn by religious orders such as monks and nuns or the hijab worn by some
Muslim women.
• The second category includes attire that is worn for religious reasons and is regularly per-
ceived as religious. An example of this might be a cross worn by a Christian.
• The third category includes attire worn for religious reasons, but not generally recognized
as such until its signicance is explained by the person wearing it. Examples of such attire
might include the dark suit worn by an Amish man or a wig worn by a married Orthodox
Jewish woman. One court has held that attire falling into this category is not considered
“religious garb or attire” because it does not indicate the wearer’s religious aliation.
56
14
The issue of whether public school teachers
must be allowed to wear religious attire
has been litigated on several occasions,
and states historically have addressed it
through statute. One state currently has a
rarely-enforced law prohibiting teachers
from wearing religious garb or attire while
teaching in a public school.
57
In states with
no statute, courts generally have permitted
teachers to wear religious attire, nding
that the wearing of religious clothing alone does not violate the Constitution.
58
It is important
to keep in mind that under Title VII, which prohibits discrimination in employment, a school
district must accommodate an employee’s need for an exception to its dress and grooming
policy based on a religious belief or practice, unless the exception would be an undue hardship
on the employer’s operation.
59
7
May a school district regulate employee expression that occurs o-campus and not at
a school activity? For example, may a school address speech or expression of an
employee who attends a controversial rally or is involved with controversial causes?
Generally, an employee’s right to associate with a particular group is protected by the First
Amendment, but in at least one case, a federal court has found that a public employer could
discipline an employee for his participation in a controversial cause when the participation was
contrary to the employer’s interest. In Doggrell v. City of Anniston, a court held that a police de-
partment did not violate an ocer’s First Amendment association rights by ring him after his
speech at the national conference of an organization identied as a “hate group” was publicized.
The department had received many complaints about the ocer’s involvement in a group that
“promote[d] a return to segregation, overtly disparage[d] black Americans, believe[d] in white
supremacy and the inferiority of black Americans and espouse[d] plainly racist and inammato-
ry rhetoric.” The court found that the police department’s interest in maintaining order, loyalty,
morale and harmony outweighed the ocer’s rights to free association.
60
8
Can a school district discipline an employee for posting content on social media?
Some courts have upheld school district’s discipline of employees for content they post on Face-
book or other platforms if such posts result in the disruption of the school district’s operations
or prevents schools from operating eciently and eectively.
For instance, in Munroe v. Central Bucks Sch. Dist., a federal court of appeals found that the
balance tipped in favor of a school district that had red a teacher who had maintained a blog
where she wrote rude, derogatory and demeaning things about her students, their parents, and
the school’s administrators. The court decided that school district ocials had not engaged in
As a general rule, schools are required to
accommodate an employee’s need for an
exception to its dress and grooming policy
in order to allow the employee to adhere to a
religious practice or belief. The only exception to
this is if accommodating such a request creates
an undue hardship on the district’s operations.
COERCION, CONSCIENCE, AND THE FIRST AMENDMENT
15
retaliation in violation of her First Amendment speech rights when they red her.
61
In this case,
teacher’s speech, “in both eect and tone, was suciently disruptive so as to diminish any legiti-
mate interest in its expression, and thus her expression was not protected.”
62
Similarly, in Czaplinski v. Board of Educ. of Vineland, a federal court ruled in favor of a New
Jersey school district that had red a school security guard after it received complaints about
racist comments on the security guard’s Facebook page. Because the guard’s performance of her
daily duties required her to be unbiased and to exercise impartial judgment, which included re-
spect and tolerance for diversity, the court concluded that her comments impaired the district’s
ability to “operate eciently and eectively.”
63
9
Can schools require employees to stand for the National Anthem or to recite the
Pledge of Allegiance?
It depends. While Barnette and its progeny bar school districts from compelling student speech
that is contrary to a student’s beliefs, those restrictions do not automatically apply to employees.
In 1979, a federal court of appeals held that a teacher could be compelled to recite the Pledge of
Allegiance, even though it conicted with her religious beliefs as a Jehovah’s Witness, because
patriotic exercises were part of the curriculum.
64
But other courts have ruled that a teacher could not be compelled to lead a class in the recitation
of the Pledge of Allegiance, or to recite it, in the absence of Tinker disruption.
65
These courts also
rely on a key idea from Barnette: “that the right to remain silent in the face of an illegitimate
demand for speech is as much a part of First Amendment protections as the right to speak out in
the face of an illegitimate demand for silence.”
66
When school ocials are considering taking action against an employee who refuses to stand for
the National Anthem or to salute the ag, it is best to use the well-established test established by the
Supreme Court in Pickering and its progeny to determine whether the teacher’s speech is protected:
• First, is the employee speaking or acting as a private citizen, or as an employee?
• Second, is the employee speaking on a matter of public concern? For example, if he re-
fuses to salute the ag because he is objecting to racial discrimination, he could be looked
upon as speaking on a matter of public concern.
• Finally, does the school district’s interest in maintaining ecient operations outweigh the
employee’s right to speak on a matter of public concern? The more disruptive the behav-
ior, the more likely it is that the school district can regulate the behavior. It is here that
the employee’s role as a teacher or counselor could be important.
16
Closing: Toward the
Teachable Moment
Public schools play an important role in educating young people about their role in our democ-
racy, not only by teaching history and civics, but also by modeling and supporting constitutional
freedoms. Teaching students about the right of protest and political and religious expression is
fundamental to preparing an engaged electorate and a functioning society. And, yet, those rights
of student expression can come into conict with the safe and ecient operation of schools. If
schools cannot maintain order and minimize disruption, learning cannot happen. And therein
lies the tension built into our democracy by our founders.
Today, students are more engaged and socially literate than previous generations. Due in part
to the explosive growth of social media and instantaneous access to the internet through smart
devices, students are exposed to wider array of ideas than ever before in our history. So, it should
not come as a surprise that students are doing more than listening. They are engaging with the
world of ideas literally at their ngertips; they are expressing themselves. And, this means that the
tension between freedom of expression and a school’s need to carry out its educational mission can
be signicant.
Community values may dier when it comes to student expression like “taking a knee.” For
some, such actions may be seen as unpatriotic; for others, quite the opposite. Regardless of the
conventional wisdom, one legal principle is clear: the law favors protection of political expres-
sion even in the face of “the discomfort and unpleasantness that always accompany an unpopu-
lar viewpoint.”
67
Knowing the requirements of the law, working with an NSBA Council of School
Attorneys member, and using the resources of state school boards associations can help schools
ease the tension that sometimes accompanies acts of protest. Armed with that knowledge and
those resources, school boards can engage their communities and establish clear policies and
procedures that minimize legal risk and respect constitutional guidelines. We hope this guide
assists you in taking steps toward that goal.
COERCION, CONSCIENCE, AND THE FIRST AMENDMENT
17
ENDNOTES
1
Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503 (1969).
2
Id.
3
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013).
4
Id. at 438.
5
Brown v. Cabell Cnty. Bd. of Educ., 714 F. Supp.2d 587 (S.D. W.Va. 2010).
6
Id. at 597.
7
Nuxoll v. Indian Prairie Sch. Dist. #204, 523 F.3d 668, 674 (7th Cir. 2008).
8
Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1071 (9th Cir. 2013).
9
Id. at 1072.
10
B.H. ex rel. Hawk v. Easton Area Sch. Dist.,725 F.3d 293, 322-23 (fn. 25) (3d Cir. 2013).
11
Id. at 322-23.
12
Harper v. Poway Unied Sch. Dist., 445 F.3d 1166, 1178 (9th Cir. 2006), cert. granted and judgment
vacated, 549 U.S. 1262 (2007) (on the grounds of mootness).
13
Bethel Sch. Dist. No. 405 v. Fraser, 478 U.S. 675 (1986).
14
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
15
Morse v. Frederick, 551 U.S. 393 (2007).
16
Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503 (1969).
17
U.S. v. Baugh, 187 F.3d. 1037, 1042 (9th Cir. 1999).
18
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915 (1982).
19
B.H. v. Easton Area Sch. Dist., 725 F.3d 293 (3rd Cir. 2013).
20
Id. at 308-09.
21
West Virginia State Bd. of Educ v. Barnette, 319 U.S. 624 (1943).
22
Id. at 642.
23
Lipp v. Morris, 579 F.2d 834, 836 (3rd Cir. 1978); Sherman v. Comm. Consol. Sch. Dist. 21 of Wheeling
Tw’p, 980 F.2d 437, 442 (7th Cir. 1992).
24
Vernonia Sch. Dist.
47
J v. Acton, 515 U.S. 646, 657 (1995).
25
V.A. v. San Pasqual Valley Unied Sch. Dist., No. 17-2471 (S.D. Cal. Dec. 21, 2017).
26
Jason Whitely, School board president defends students kneeling during anthem, WFFA (Oct. 2, 2016),
http://www.wfaa.com/news/local/education/school-board-president-defends-students-kneeling-during-
anthem/328389124.
27
Paul Walsh and Liz Sawyer, Edina, Minneapolis athletes take a knee at games, join national anthem
protest, Star Tribune (Sept. 21, 2016), http://www.startribune.com/athletes-at-two-minneapolis-high-
schools-take-knee-during-national-anthem/394120041/.
28
Christine Hauser, High Schools Threaten to Punish Students Who Kneel During Anthem, The New York
Times (Sept. 29, 2017), https://www.nytimes.com/2017/09/29/us/high-school-anthem-protest.html.
29
Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001).
30
Lowery v. Euverard, 497 F.3d 584, 588 (6th Cir. 2007).
31
Vernonia Sch. Dist.
47
J v. Acton, 515 U.S. 646, 657 (1995).
32
Doe v. Silsbee Indep. Sch. Dist., 402 Fed. Appx. 852 (5th Cir. 2010).
33
Kountze Indep. Sch. Dist. v. Matthews, No. 09–13–00251, 2017 WL 4319908, *3 fn. 4 (Ct. App. Tex.
Sept. 28, 2017).
34
Lowery v. Euverard, 497 F.3d. 584 (6th Cir. 2007).
35
Id. at 597.
36
Id. at 596.
37
Doninger v. Nieho, 527 F.3d 41, 50-53 (2d Cir. 2008); 642 F.3d 334, 346-347 (2d Cir. 2011).
38
See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995).
39
U.S. v. Seeger, 380 U.S. 163, 176 (1965).
40
Welsh v. United States, 398 U.S. 333, 340 (1970).
41
Walz v. Egg Harbor Tp. Bd. of Educ., 342 F.3d 1295 (7th Cir. 1993); Morgan v. Plano Indep. Sch. Dist.,
589 F.3d 740 (5th Cir. 2009).
42
Pickering v. Board of Educ., 391 U.S. 563 (1968).
43
Id.
18
44
Connick v. Myers, 461 U.S. 138 (1983).
45
Id. at 147.
46
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
47
Id.
48
Craig v. Rich Tp. High Sch. Dist. 227, 736 F.3d 1110, 1119-1120 (7th Cir. 2013).
49
Johnson v. Poway Unied Sch. Dist., 658 F.3d 954 (9th Cir. 2011).
50
Id. at 968.
51
Fowler v, Board of Educ. of Lincoln Cnty., 819 F.2d 657, 668 (6th Cir. 1987).
52
Questions and Answers: Religious Discrimination in the Workplace, U.S. Equal Employment Opportuni-
ty Commission, Question No. 13 (Jan. 31, 2011), https://www.eeoc.gov/policy/docs/qanda_religion.html.
53
Id.
54
Id.
55
U.S. v. Board of Educ. for Sch. Dist. of Philadelphia, 911 F.2d 882 (3d Cir. 1990), reh’g denied, Sept. 12, 1990.
56
EEOC v. Reads, Inc., 759 F. Supp. 1150, 1158 (E.D. Pa. 1991).
57
24 P.S. § 11-1112 (2017). In 1990, a federal appellate court decided that, because Pennsylvania had deter-
mined that the wearing of religious attire by teachers is a threat to the maintenance of religious neutrality
in public schools – a compelling state interest—and because the state statute banning all religious attire
was being enforced in a non-discriminatory way, it would impose an undue hardship on the school district
to require it to disobey the state law to accommodate a Muslim teacher’s request to wear her religious
garb to school. U.S. v. Bd. of Educ. of Sch. Dist. of Philadelphia, 911 F.2d 882 (3rd Cir. 1990).
58
Reviewed and updated by Deryl A. Wynn and A. Dean Pickett, A School Law Primer - Religion: Legal
Pointers for Public Schools, Council of School Attorneys (2015), https://cdn-les.nsba.org/s3fs-public/
reports/Religion%20Primer%20Legal%20Pointers%20for%20Public%20Schools.pdf?IxuMGD4U2nGt_
HsJ8IgR_AWF.CIkNUGq; Moore v. Board of Educ., 212 N.E.2d 833 (Ohio Comm. Pl. 1965); Rawlings v.
Butler, 290 S.W.2d 801 (Ky. 1956); City of New Haven v. Town of Torrington, 43 A.2d 455 (Conn. 1945);
Johnson v. Boyd, 28 N.E.2d 256 (Ind. 1940); Gerhardt v. Heid, 267 N.W. 127 (N.D. 1936); but see Zellers
v. Hu, 236 P.2d 949 (N.M. 1951).
59
Religious Garb and Grooming in the Workplace: Rights and Responsibilities, Equal Employment Op-
portunity Commission, available at https://www.eeoc.gov/eeoc/publications/qa_religious_garb_groom-
ing.cfm.
60
Doggrell v. City of Anniston, No. 16–CV–0239–VEH, 2017 WL 4340449 (N.D. Ala. Sept. 29, 2017).
61
Munroe v. Central Bucks Sch. Dist., 805 F.3d 454 (3d Cir. 2015).
62
Id. at 465.
63
Czaplinski v. Board of Educ. Of Vineland, No. 15–2045 (JEI/JS), 2015 WL 1399021 (D.N.J. Mar. 26, 2015).
64
Palmer v. Board of Educ. of City of Chicago, 603 F.2d 1271, 1274 (7th Cir. 1979).
65
Hanover v. Northrup, 325 F. Supp. 170 (D. Conn. 1970).
66
Russo v. Central Sch. Dist. No. 1, 469 F.2d 623, 634 (2d. Cir. 1972).
67
Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503, 509 (1969).
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