NEA EdJustice Features

7 Questions Educators Are Asking About Their Rights to Speak Out, Protest, and Engage in Activism

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.

 

See NEA’s Advisory: RESPONDING TO STUDENT WALKOUTS PROTESTING SCHOOL GUN VIOLENCE

TAKE ACTION: Go to ProtectOurSchools.com get resources and add your events.

24 responses to “7 Questions Educators Are Asking About Their Rights to Speak Out, Protest, and Engage in Activism

  1. At our school we had many students walk out. When they came back I asked every one of them what they were protesting and not one could tell me. They were just looking to get out of class and this protest which was organized by the same adults who organized the Women’s March was the perfect opportunity. The protest was encouraged by NEA who had a town hall meeting over the phone in which I participated that encouraged teachers to use their free time to encourage students to participate in the walkout. Our job is to educate, not to politicize tragedies to push a specific political agenda. All across the country there were stories of students who were suspended or disciplined for having the opposing point of view during the walkout and standing up for the Second Amendment. How can anyone claim the protest was an exercise in freedom of speech if the only speech allowed was anti-gun speech? I am thankful for this article because now that I know my rights I know that I can go to the March for Our Lives event and speak on behalf of true safety measures that will help protect our children rather than just pushing a political agenda that won’t really do anything to protect our children. School shootings are a tragedy. Luckily, they are very rare. There are ways to prevent them. The Florida shooting was very preventable. The Maryland shooting yesterday was prevented by an armed personnel which is the only way to stop a bad guy with a gun. We need real change and open discussions that are intellectually honest.

    1. The Great Mills High School shooting was absolutely not “prevented”. Jaelynn Willey, 16, was shot and killed, as was the 17-year-old shooter, and another young man, 14, was shot in the leg. Knowing that there was an armed SRO in the building did nothing to stop the shooter from simply taking one of his father’s guns, bringing it to school and committing murder.

  2. As a retired teacher I say this is a teachable moment. Take advantage of it. This is great information and I will pass it on. Thanks for posting this.

  3. As a retired teacher, I believe it is definitely a travesty to encourage our young people to join platforms that are politically charged, such as, gun protests, racial issues, etc. which appear to be the many issues promoted by the left- wing radicals besides burning the college campuses and preventing free speech to whom they consider conservatives…..The right approach for teachers should be to stay on track with the subject/skills and facts they are suppose to be teaching and allow their students to have freedom of speech, become critical thinkers, and decision makers………instead of trying to tell them what to think, what to decide, and removing the freedom of speech……..left wing radicals…..take note of this……this is my nice way of stating it…!!!!!!!!

    1. I think it is a good thing you retired because you see efforts at gun control as left wing radical issues. This is a huge issue for both the left and right. Do you see a free country as one in which teachers are being asked to possibly carry guns? Do you see a free country as where students are afraid to go to school because of gun violence? Do you have children in high school or college? If so, can you honestly say you’ve never had any fear about their well being at school? No one is telling these kids what to think. It is a matter of common sense. With all due respect, COMMON SENSE seems to be something you lack.

    2. Kathy Hanson the travesty is one who puts on blinders, wishes blinders to be put on our youth, and spew only what is in textbooks without rich, diverse debate and discussion. We do want our children to develop into critical thinkers, decision makers, and independent, confident adults. Espousing simply the same old, same old will not do them well, not in this day and age. Our society is deeply divided the likes of which I do not recall in my 60 years on this planet. I embrace now, and will continue to embrace the growth potential when our youth is allowed to develop, express, and debate their opinions. That Ms. Hanson, in my humble opinion, is the way forward. I take serious issue with you citing the Left being the ones to limit our children’s ability and opportunity to express and expand. Enough said.

    3. On the contrary, it is our duty to encourage young people to protest, especially on politically charged issues that affect them and the world that they will live in. Consider what our society would have been like had protesters: not protested British taxes on tea; not protested against slavery; not protested against racial discrimination; not protested the Vietnam War; not protested women’s lack of rights; etc. A free and vibrant society encourages, rather than fears, the open expression of First Amendment Rights among all its citizens, especially the young.

    4. Historically, activism by young people is exactly what brings about change. I disagree very strongly with you; teaching young people to stay informed regarding current events and to develop an opinion is vital. Perhaps it’s a good thing you have retired.

    5. Dear Kathy: You sound like you are supporting the Right-Wing National Rifle Association that gives life-time memberships to Russian mobsters instead of supporting the safety of American students. Shame on you.

  4. I appreciate NEA’s efforts to educate its members about their constitutional rights. In our litigious society, ignorance is not bliss.
    NEA does not dictate how members should use this information. Each member should make his or her own decision. It’s called Freedom of Choice!

    1. Dear Mary,
      I appreciate your input, however, any and all activism should be done on your own time and not in the schools. A teacher should stick to their contracted teaching subject. This activism doesn’t fall under, “Other Duties as dictated by the Administration”. Teach what you are being paid to do. Teach your students “How” to THINK, not “What” to THINK.

  5. “As a retired educator and life member of NEA”, I appreciate NEA’s efforts to educate its members about their constitutional rights. In our litigious society, ignorance is not bliss.
    NEA does not dictate how members should use this information. Each member should make his or her own decision. It’s called Freedom of Choice!

  6. As a retired educator and life member of NEA I am disgusted that our primary focus seems to be about activism and protests always involving a left wing agenda . Perhaps teaching students facts,freedom of speech and how to become critical thinkers may be more beneficial for our students

    1. So you are only against allowing students to exercise their right to free speech when you support what they are protesting? Got it. What facts would you teach them? Only the ones you deem pertinent? As teachers who are still working in schools, we were directed by our district to neither encourage or discourage the walkout and allow students to exercise their first amendment rights as provided by our Constitution. We didn’t teach them liberal values. They came up with them on their own. And when in the world did preventing gun violence in schools become a left wing idea? Shouldn’t we all want a safe environment for our students and fellow staff members. Maybe you SHOULD go back to the classroom. These students would teach you something.

    2. That is actually exactly why the “left wing” wants. We have “right wing” platforms that actually state they are against critical thinking. There is a huge problem when people, educators, make uninformed comments.

    3. Well Bill, as a another retired educator the foundation of our county was built on activism and protest. As you suggest illuminating students about facts, freedom speech and critical thinking is paramount especially now when those ideas are under constant threat and attack by right wing reactionaries.

  7. Thanks so much for this information! This article was extremely helpful. What our country is dealing with is terrible, and it’s time to take action. However, as educators, it’s hard to know what our rights are in regards to taking action. So this article will be extremely helpful to many, I assume! Thank you again!

  8. A more impactful social justice issue would be the 11 teenagers who die EVERY DAY because they were texting while driving (according to the CDC). Teachers should be educating students on how to evaluate situations and take action on the one with the most productive outcome. Not just follow some fanatical biased SJW misdirection.

    1. Good post Jon. There are a number of other preventable things that are not Constitutionally guaranteed, as are gun rights, that are more likely to take a teen’s life than gun violence. Texting while driving is only one. Unfortunately, these greater hazards don’t make as good copy as bad old guns.

      “There is nothing so dangerous to individual liberty as a soccer mom who has just seen a biased emotional news piece and is now in her mini van on the way to the polls.” Val E. Forge

  9. I fully back the students who are planning and participating in peaceful student walkouts to protest school gun violence. I also applaud schools who allow students to participate in these events and encourage students to speak about gun violence in their communities!

  10. Great information. Thank you for publishing this. I am at the end of my career, but worry so much about the future for teachers. I lie in bed at night, trying to think of escape plans for the little ones, in case of a school shooting. Their lives are just beginning & we shouldn’t have to drill on things like this, but with an outside door, I would consider flight outside of the building. How do I know I am right? I worry constantly, as shootings are rampant, and we are not given clear direction on this.

    1. As a retired teacher I say this is a teachable moment. Take advantage of it and take the opportunity to talk with your students about the First Amendment and their rights. Thanks for the information. I will pass it on.

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