Can Employees Express Political Views in Public Schools?
By Martha Mccarthy, Ph.D.
It is well established that public educators have a First Amendment right to participate in the political process outside school, including campaigning for candidates and running for office as long as such activities do not interfere with their job performance or present a conflict of interests. Yet, when educators’ political activities move inside the classroom, the employees’ expression rights may no longer prevail. Several recent controversies have focused on teachers making political comments or promoting political candidates in public schools. Although in the 1970s some courts upheld teachers’ First Amendment right to wear armbands in silent protest of the Vietnam War, the judiciary more recently has not been receptive to employees’ claims that they have a constitutional right to make political statements to students. The general legal principle is that public school personnel cannot proselytize the captive student audience.
In a recent New York City case, Weingarten v. Board of Education, a federal district court upheld the school district’s ban on employees wearing political buttons at school. The court relied on a student expression case, Hazelwood v. Kuhlmeier, in which the U.S. Supreme Court established that expression appearing to represent the school can be censored for legitimate pedagogical reasons. The New York court ruled that students might view the political buttons as representing the school if worn by employees. This ruling is consistent with other decisions in which state and federal courts recently have upheld bans on teachers wearing buttons to promote political candidates or to criticize the United States and its involvement in Iraq and Panama.
However, the court in Weingarten held that teachers could post materials in the teachers’ lounge and other areas where students do not have access. It also ruled that teachers could use staff mail boxes to distribute political literature, even though some other courts have concluded that partisan political materials can be barred from school employees’ mailboxes that are not intended to be a forum for free expression.
Controversies over political expression extend beyond distributing materials and wearing buttons. The Seventh Circuit in 2007 held that a probationary teacher’s expression of her opposition to the war in Iraq during a current events discussion with her students was not constitutionally protected. Also, a New York federal district court held that in an election year, a school district could require a teacher to remove the incumbent president’s picture from her classroom or to post the opposing candidate’s picture to ensure balance.
The tension between protecting students from political indoctrination and respecting public employees’ expression rights will likely continue to generate litigation. While public educators have an absolute right to their political, religious, and other beliefs, they do not have a right to impose those beliefs on students. Thus, restrictions on public employees’ political activities in the classroom will likely be upheld if legally challenged.#
Martha McCarthy, Ph.D. is the Chancellor’s Professor and Chair of Educational Leadership and Policy Studies at Indiana University.
