Know Your Rights: Teacher/Administrator Rights & Responsibilities

There is understandably widespread confusion regarding the rights and responsibilities of public school teachers and administrators under the First Amendment. The First Amendment consists of three complimentary clauses: the Establishment Clause, the Free Exercise Clause, and the Free Speech Clause. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech . . . .” U.S. Const. amend. I. In sum, the First Amendment protects speech and religious expression from government interference and prohibits the government from establishing or coercing participating in religion.

While the Supreme Court has affirmed time and time again that “the First Amendment’s protections extend to ‘teachers and students,’ neither of whom ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,’” it has also cautioned that “the speech rights of public school employees are [not] so boundless that they may deliver any message to anyone anytime they wish.”

Because teachers and administrators are both private citizens and government employees, paid to speak on the government’s behalf, whether an employee’s speech and religious expression is protected depends on the nature of the speech.  The White Paper accompanying this post aims to dispel much of the confusion surrounding this issue. Below is a summary of some basic legal principles that apply:

1. Whether a school employee’s speech is protected under the First Amendment depends on the context of the speech.

Last year, in Kennedy v. Bremerton School District, the Supreme Court provided some much-needed clarity on the application of free speech rights and government employment. In Kennedy, a football coach was fired by the school district for praying on the field after football games. The Court correctly held that his speech – prayer in this case – was protected by the First Amendment and he should not have been fired. In examining whether Coach Kennedy’s speech was protected under the First Amendment, the Court considered whether the speech (and religious expression) took place within the scope of his official duties as a coach or as a private citizen. The Court concluded that Coach Kennedy’s prayers were protected speech because he “demonstrated that his speech was private speech, not government speech.” The Court explained that when he prayed, “he was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.” Further, Coach Kennedy’s prayer was offered after the game during a time when all coaches were free to attend to personal matters, and students were engaged in other activities.

            In contrast to Kennedy, in Garcetti v. Ceballos, the Court held that a public employee’s work on an internal memorandum to a supervisor was essentially government speech, not private expression because the prosecutor’s speech “‘fulfill[ed] a responsibility to advise his supervisor about how best to proceed with a pending case.’”

Thus, the critical question is whether the speech at issue is within the scope of an employee’s duties. Specific factors such as timing, location, and scope of employment will be used by a court to determine whether the speech is protected. The mere fact that an employee is on duty at the time of his/her speech does not make his speech “official” speech and categorically eliminate the First Amendment’s protections. If the speech is protected, courts then apply a balancing test to decide whether restricting that speech is consistent with the First Amendment.

2. Government restrictions on religious speech and expression must be neutral and generally applicable.

The Free Exercise Clause protects the expression of religious beliefs of all kinds. Any restriction on a school employee’s religious speech or expression must be neutral and generally applicable. A government policy will not qualify as neutral if it is “specifically directed at . . . religious practice” or if it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interest in a similar way.”

In Kennedy, for example, the Court held that the school district’s policy also violated the Free Exercise Clause because it sought only to limit Coach Kennedy’s religious speech/expression. The school did not seek to limit the conduct of other members of the coaching staff after the game. Indeed, “the school permitted other members of the coaching staff to forgo supervising students and do things like visit with friends or take personal phone calls.” The Court concluded that “any sort of postgame supervisory requirement was not applied in an evenhanded, across-the-board way.”

3. The Establishment Clause is not to be used to trump rights guaranteed under the Free Speech and Free Exercise Clauses.

While the Establishment Clause has been interpreted to prohibit certain government-endorsed religious activities, the Supreme Court has warned that it must not be used against the Free Speech and Free Exercise Clauses. “A natural reading of [the First Amendment] would seem to suggest that the Clauses have ‘complementary’ purposes, not warring ones when one Clause is always sure to prevail over the others.” “An Establishment Clause violation does not automatically follow whenever a public school or other government entity ‘fail[s] to censor’ private religious speech.” And it certainly does not compel the government to purge anything one might infer endorses religion.

For example, in Kennedy, the Court observed that the school district’s decision to ban Coach Kennedy’s prayer under the Establishment Clause was improper and disregarded the Free Speech and Free Exercise Clauses. The school district’s reasoning was based on the flawed Lemon test which the Court admitted has “‘invited chaos in lower courts.” The Court instructed that the Lemon test be abandoned and ordered that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” In sum, what is or is not permissible must “‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”

4. The Establishment Clause limits the extent to which a school employee may engage in religious speech and expression.

In light of the Supreme Court’s instruction in the Kennedy case that the Lemon test previously used by courts be abandoned, it remains unclear what conduct previously held to be unconstitutional under the Lemon test might be held constitutional under this new test. On the one hand, the Supreme Court has reiterated that “the Establishment Clause does not include anything like a ‘modified heckler’s veto, in which . . . religious activity can be proscribed’ based on ‘perceptions’ or ‘discomfort.’” On the other hand, the Court has made it clear that the Establishment Clause prohibits the government from coercing participation in religious activities, including but not limited to:

• “mak[ing] a religious observance compulsory;”
• “coerc[ing] anyone to attend church;”
• “forc[ing] citizens to engage in ‘a formal religious exercise;’”
• “inviting a clerical member to publicly recite prayer at an official school graduation ceremony;” and
• “‘broadcast[ing] a prayer over the public address system’ before each football game.”

The ACLJ will continue to work to ensure the proper application of the First Amendment and the protection of the religious liberty and free speech rights of teachers and students alike. The Supreme Court’s decision in Kennedy helped clarify this area, but there will likely be much more litigation in this area in the future to ensure that the Constitution and Supreme Court precedent is properly applied.

We hope that the attached White Paper provides further clarity on the rights and responsibilities of school administrators and employees. For decades, the ACLJ has provided legal assistance and representation to schools, administrators, and employees whose religious liberty and free speech rights have been violated – winning many significant victories at the Supreme Court. If your school needs assistance in this area, or if you are a school employee and you feel your First Amendment rights have been violated, please contact us at ACLJ.org/HELP.