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Can a teacher put a sticker on their laptop expressing support for a political candidate? What about an employee attending a pro-life rally or using their personal social media account to express opinions about global conflicts?
These are just some of the complex questions schools are asking as the 2024-25 school year progresses, with a political climate that is increasingly divisive and polarizing. If we learned anything from 2020, it was that political perspectives can be disruptive and that the rules about how and when employees can express such perspective in the workplace, as well as privately, can feel murky.
In the midst of another heated election season and a desire by schools to navigate an array of polarizing local, national and global issues gracefully, many independent school leadership teams used the summer to engage in thoughtful discussion about the protections and limits of political speech, particularly for their faculty and staff. This led many schools to develop (or revise) policies designed to provide guardrails and guidance to employees regarding boundaries related to free speech and personal expression both in and outside of the workplace. Before developing relevant policies, however, it is important for schools to understand the underlying law regulating employee speech and personal expression, whether at work or in their personal capacity.
IRS Restrictions
As a threshold matter, nonprofit schools must be mindful of IRS restrictions on political activity. These restrictions resulted from legislation passed in 1954 (commonly referred to as the Johnson Amendment, named after then-Senator Lyndon B. Johnson, who introduced this provision) which amended the federal tax code to require that tax-exempt 501(c)(3) organizations such as independent schools act in a non-partisan manner and refrain from promoting or opposing candidates.
This ban on political activity extends to anyone acting on behalf of a school. It also extends to a school’s ability to engage in issue advocacy, or public messaging that favors or disfavors policy positions designed to promote a particular candidate or political party, or which may influence the outcome of an election.
A class that compares the speaking styles of various presidential candidates may be fine but a class that takes students to a rally in support of such a candidate and requires them to hand out fliers encouraging citizens to vote for a candidate may not.
But determining when issue advocacy crosses the line into prohibited political activity can be challenging. While schools may be able to take positions on certain public policies that are mission aligned, they may not do so when publicly taking a policy position functions as political campaign intervention and favors or opposes a candidate.
Deciding when public advocacy might run afoul of IRS rules is based on the particular facts and circumstances, including
- The timing of the statement relative to elections.
- Whether the messaging references any particular candidate or expresses approval (or disapproval) for the actions/policies of a candidate.
- Whether the issue is one that has been raised as one that distinguishes between candidates.
- Whether the communication is one of a series of statements by the school on the same issue that are made independent of the timing of the election.
Thus, a class that compares the speaking styles of various presidential candidates may be fine but a class that takes students to a rally in support of such a candidate and requires them to hand out fliers encouraging citizens to vote for a candidate may not.
The First Amendment
IRS rules aside, as a general rule, private employers such as independent schools, have broad authority to regulate employee speech when such expressions are disruptive to the school. Unlike their public school counterparts, the First Amendment generally does not apply to private schools. But certain speech may still be protected by other laws such as anti-discrimination, whistleblowing or anti-harassment statutes. In addition, federal and some state labor law confers certain rights of employees to engage in protected concerted activity through speech related to their wages or working conditions.
Even if the First Amendment does not apply, it is useful to understand the framework to analyze and consider when a school might want to intervene to restrict and employee’s expression or speech.
There are, however, some states such as Connecticut that have passed legislation that extends protections for private employees engaging in protected speech.Even if the First Amendment does not apply, it is useful to understand the framework to analyze and consider when a school might want to intervene to restrict and employee’s expression or speech.
Connecticut, for example, recognizes that employees in the private sector have a right to be free from employer discipline on the basis of speech and that any limitations on the first amendment right of employees in a public workplace apply to the private workplace too. But the speech must be the type that should be protected – that is, it must be on a matter of “public concern.” Thus, an employee who is complaining about their own workplace or who commits insubordination in the guise of “free speech” likely isn’t deserving of protections from discipline or termination.
Ultimately, much of the analysis of free speech claims looks at a balancing test between the speech at issue and the disruption to the workplace. In addition, an employee has to show that the speech does not “substantially or materially interfere” with that employee’s job performance or working relationship.
Policy Considerations
From this framework, employers should temper their desire to shut down all speech — such as speech outside of work on an employee’s private social media page that has no impact on the school itself.
As a result, employers should consider developing policies that address areas in which speech sometimes conflicts with the school’s mission and purpose, or with the need to maintain an orderly educational environment conducive to learning. These policies should address these types of areas:
- Anti-harassment and discrimination policies, giving clear examples of actions or speech that might constitute protected class harassment, retaliation or discrimination.
- Employee use of school email to communicate about non-work matters.
- Dress codes and wearing clothing with political messages.
- Displaying posters or signage in classrooms .
- Signage on or around campus, including on lawns or in windows of faculty housing.
- Personal or private use of social media to advocate or express political opinions or stances on social issues.
- Circumstances when private speech outside of school and unrelated to work could run afoul of school policies and potentially impact employment.
- Field trips to events like political rallies or campaign events.
Setting Expectations
Finally, it is important to continue ongoing discussions with faculty and staff about expected professional boundaries with students when discussing controversial topics, such as politics or other social issues. While faculty are entitled to maintain their own opinions and personal views on political and social issues, advocating or espousing such views with students while performing job responsibilities can alienate students with opposing views, and at times, create division and disruptive to the school.
For schools, that disruption to the working relationship or the operations of the school can be severe. But the ramifications for a school shutting down certain speech can also be significant, both legally and in the court of public opinion too.
Perhaps the best takeaway is this simple notion: Don’t overreact to everything you read on the internet from an employee. Just because someone posts something on a TikTok channel doesn’t mean you have to take an employment action. Rather, be thoughtful and be sure to balance competing interests. And, if necessary, consult with legal counsel to understand the legal landmines out there.
