New York State School Boards Association

Political expressions in school can be ‘gray area’ for officials

by Cathy Woodruff

On Board Online • September 24, 2012

By Cathy Woodruff
Senior Writer

At a time when an impending presidential election is fueling super-heated political passions and rhetoric, the public environment often feels virtually saturated with partisan messages delivered via television, radio, social media, campaign signs and mailings.

But what about the public space of school classrooms and hallways?

Should faculty members be allowed to wear political campaign buttons in school? How about a teacher arguing on behalf of his or her personal political preference during a spirited classroom discussion of American democracy – or simply even expressing a political preference? What if a teacher’s car in the school parking lot displays a Romney or Obama bumper sticker?

“You get into some knotty issues regarding freedom of speech and First Amendment rights, and it’s a very gray area,” said Jay Boak, district superintendent for the Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES, based in Watertown.

St. Lawrence-Lewis BOCES Superintendent Thomas Burns recalls seeing teachers and other colleagues wearing subtle indicators of their political sentiments over the years. He remembers men’s neckties patterned with Republican elephants or Democratic donkeys and teachers who commonly wore small political pins on their blazer lapels.

Those fashion displays did not stir controversy or prompt objections, Burns said. But he acknowledged that community standards and individual perceptions can play a significant role in such situations, and he said he and his fellow administrators are mindful of the potential for conflict.

U.S. courts have held that school boards have the authority to place limits on political speech in schools under certain circumstances, particularly when the speech can be shown to interfere with a school district’s educational mission.

In a case that arose during the last U.S. presidential campaign, the union representing teachers in New York City sued the school system over regulations prohibiting the wearing of political buttons in school and distribution of campaign literature to fellow staff members.

The 2008 United Federation of Teachers lawsuit (Weingarten v. Board of Education) stemmed from school officials’ enforcement of regulations requiring school employees to remain politically neutral while on duty.

The union argued that school leaders improperly violated their First Amendment free speech rights by banning teachers from wearing political buttons, prohibiting the posting of candidate political materials on union bulletin boards and prohibiting delivery of political materials to staff mailboxes.

In a pair of decisions in 2008 and 2010, U.S. District Court Judge Lewis A. Kaplan ruled that school officials could not restrict the distribution of political materials in areas off-limits to students. But he affirmed the district’s right to ban the wearing of buttons promoting political candidates in classrooms.

The judge cited other federal court decisions that describe students as “a captive audience” and declared that allowing teachers to express political viewpoints in the classroom “has the potential to turn into indoctrination.”

Wearing such visible support of an individual candidate unavoidably entangles a teacher’s educational mission with partisan politics and impinges on the rights of students to learn in a place free of partisan political influence, Kaplan ruled.

Decisions in previous federal cases make it clear, the court wrote, that school boards “are constitutionally permitted, within reason, to regulate the speech of teachers in the classroom for legitimate pedagogical reasons” and that “the maintenance of neutrality on controversial issues is a legitimate pedagogical reason.”

Linda Bakst, NYSSBA deputy director of policy services, said such court decisions can help guide school officials as they strive to balance the free speech rights of teachers with the legitimate educational interests of the district.

“The fine line, I think, is where the teacher or administrator exerts undue influence,” Bakst said.

School boards can make that line clearer for staff members in their communities by adopting formal local policies on the issue, she said.

A NYSSBA model policy 1310 says school employees have a constitutional right not to be subject to “adverse employee actions” due to their political party affiliation but they may not use their positions of authority, school facilities or the immediate environs “to advance their own personal political beliefs.”

Some districts already have policies on the books that could be applied if a troubling situation arose.

For instance, a Scotia-Glenville policy regarding advertising in schools,  says school facilities and staff shall not be used to advertise “or otherwise promote any commercial or political activity.”

Even if a teacher does not intend or expect to influence the developing political views of students, the expression of a partisan political view can raise legitimate concerns about the neutrality of the educational environment, said NYSSBA General Counsel Jay Worona.

“When you are in your classroom, your students are a captive audience. If you want to wear a button that says ‘Vote,’ that’s fine. But if the button says ‘Vote for someone,’ it can be perceived as advocating.”

In an influential 2006 case, the U.S. Supreme Court upheld a public employer’s right to discipline or dismiss employees based on their speech, depending on the circumstances. It ruled in Garcetti v. Ceballos that a public employee’s speech in connection with his or her job is not entitled to First Amendment protection even if the speech on a matter of public concern.

This precedent has been applied in a number of school-related cases, including one involving a probationary teacher in Massapequa, N.Y., who posted a picture of George Bush in her third grade class and did not heed the district’s request to remove it or balance it with a photo of John Kerry. She resigned rather than be denied tenure, then claimed she was constructively discharged in retaliation for exercising her right to free speech. A federal district court ruled in favor of the school district, citing Garcetti.

“Just because you can discipline somebody (for political speech) doesn’t mean you have to,” Worona said. “It’s kind of like that line from Spiderman: With great power comes great responsibility.’” 


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