Free Speech Rights of Educators in Utah

Teachers and staff at school have free speech rights, but there are many limitations, especially for those who work in a K-12 setting. The extent to which the First Amendment covers teachers and staff depends on various factors. Generally, the First Amendment protects your speech if you speak as a private citizen on a matter of public concern. It also protects political speech outside of work. Speech as part of your job duties does not have the same protection. School districts can regulate employees’ speech during their duties. What you say or communicate inside the classroom or in school settings is considered speech on behalf of the school district, so the First Amendment does not protect that speech. A school employer can discipline or dismiss teachers and staff for work-related speech or expressive activities that violate policy. Such speech includes speech in official communications and classroom instruction. Additionally, a school may impose discipline for speech and expressive activities by staff and teachers outside of work if the school shows that the speech created a substantial adverse impact on school functioning or is related to job duties.

Teachers and staff cannot be disciplined for speech protected by the First Amendment. Some examples of protected versus unprotected speech are provided below.

Examples of incidents where Courts have found speech to be protected by the First Amendment:

• Attending a protest on the weekend
• Posting on a personal Facebook page an article in support of a specific political candidate
• Publishing an op-ed that is critical of the school board for one of its actions or ideas. The court viewed the opinion piece as expressing an opinion on a matter of public concern and protected the teacher's speech the same as any other member of the public.

Examples of incidents where Courts could find speech is not protected by the First Amendment:

• Posting a "joke" on Facebook about students being lazy. The courts have viewed this speech as potentially creating an adverse school environment and thus in the scope of speech for which a school could impose discipline.

Other types of situations:

• You are instructed not to discuss your personal opinion on certain political matters with students. In a classroom discussion on global events, you let your students know you recently participated in an anti-war demonstration. This speech may not be protected. Both public and charter school districts have control over classroom content, displays, curriculum, and teaching methods. Courts have found that teachers can be disciplined for departing from the curriculum adopted by the school district, and courts could conclude that inserting personal experience as a protester is such a departure. However, It is unclear whether the First Amendment protects teachers who had not been specifically instructed to refrain from expressing personal political beliefs. Some courts have ruled that schools may not discipline teachers for sharing certain controversial words or concepts in class that bear on the district's curriculum.
• A teacher publishes an online book containing explicit sexual passages. Even though this is speech in the teacher's private capacity, i.e., not part of official duties, and could be a matter of public concern, a court might find that the school employer may impose discipline for it. Courts balance the school's interests and the teacher's free speech rights in this situation. They might determine that explicit sexual content substantially impacts the educator's teaching ability and the school's functioning.

Speech in the classroom does not have the same First Amendment protection as speech by a private individual outside of a school setting. School districts have the authority to control the content, curriculum, and methodology school staff adopt. This authority extends to classroom decorations, posters, or displays. Courts have recognized that school districts can require staff to remove banners and displays that may be perceived as conveying religious, political, and patriotic views. Sorting out the limits on this authority can be a murky area.

Some courts have ruled that schools cannot discipline teachers or staff for sharing words or concepts that are controversial as long as:

1. The school has no legitimate interest in restricting that speech
2. The speech is related to the curriculum.

Courts have recognized, however, that public schools have broad discretion to control the curriculum and methodologies in classroom instruction if that control is tied to legitimate pedagogical purposes. In general, teachers should exercise caution with speech in the classroom or in the course of their duties to avoid the appearance that they advocate a particular religious or political view in the school, as these can be viewed as state endorsement of religion. Examples of this kind of speech include prayers and, in some contexts, moments of silence.

Generally, yes. But, if the school can show that your speech would be harmful to your workplace functioning or is disruptive, the First Amendment is not likely to protect you.

The right of teachers and school staff to express their views in school on public matters is subject to limits and will depend on the specific facts relevant to each situation. As a general matter, courts have said that if the items are not disruptive, they are protected as free speech. For example, wearing a necklace with a religious symbol is likely protected as an expression if it is not accompanied by active endorsement of religion. On the other hand, courts have ruled that public schools can bar teachers from wearing buttons supporting a current political candidate. T-shirts with political messages or slogans could also be considered "disruptive". The same rules apply to classroom decorations or displays. It is best to avoid any appearance that you are advocating a particular religious or political view.

Generally, speech outside of school unrelated to your work and on a topic of public importance is protected by the First Amendment. If school officials can show that your speech could adversely affect school functions or your effectiveness as a teacher or staff member, however, the First Amendment may not protect you. Utah law also prohibits discipline for lawfully expressing your religious, political, or personal beliefs, including beliefs about marriage, family, or sexuality outside of the workplace, unless such speech/beliefs directly conflict with “essential-business related interests” of the school.

The same rules that apply generally to speech and expression outside of schools apply to social media. As such, whether a school employer may discipline teachers and staff over social media posts depends on the situation, including whether the posts were within the scope of employment and its content. If you use social media in connection with your employment duties, the school employer can generally regulate content and discipline for your activities. Social media posts unrelated to your job made privately and expressing your beliefs on matters of public concern receive First Amendment protection, subject to the same caveats as other such speech. A school may discipline you if something you posted implicates the school’s legitimate interests that outweigh your interest in the speech. You may also be subject to discipline if the posts are not about a matter of public concern and the school has a rational basis for imposing the punishment. Examples where the First Amendment may not protect you include if you make comments about students, school, or other work-related matters or if you engage in conduct on social media that can be shown to impair your functioning as a teacher.

Examples of incidents when Courts have upheld discipline against a teacher for social media speech:

• Demotion of a teacher who posted derogatory comments about a school administrator on her blog
• Dismissal of a teacher who posted offensive comments about her students on her personal Facebook.
• Firing of a teacher who communicated with students through social media inappropriately.
• Firing of a teacher who posted sexually explicit Craigslist ads (“immoral conduct” made him unfit to teach).

In some circumstances, schools can access a teacher or staff member’s personal social media accounts. Teachers have some privacy protections in Utah related to their online activities. Utah law (Utah Code Ann. §§ 34.48.101 – 34.48.301) prohibits employers from obtaining passwords or usernames for your personal accounts. An employer may request your username or password to access an electronic device supplied by your employer or an account provided by the employer that is used for the employer’s business purposes. An employer may also require access to a personal account to investigate work-related misconduct. You should also be aware that school authorities can access the content you post on social networking sites without direct access to your profile. Even when you maintain a “private” page on a social networking site, someone with access could repost or share your statements with third parties, including the school.