Teachers Can’t Wear Their Politics

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A school district in Pelham, NY, is in the news for barring staff from wearing masks depicting thin blue line flags, deeming them a political statement. Is this a violation of the First Amendment?

To begin, it’s important to note that a ban on teachers and employees is different from banning students from wearing political symbols. According to Supreme Court precedent going back to 1969, public school students have free speech rights, although that right has been limited to circumstances where their speech doesn’t disrupt school operations. As a result, a school district couldn’t constitutionally ban students from wearing political symbols.

Employees are a different story. The leading case in this area holds that public employees — including school employees — have much more limited free speech rights while performing of their duties. If they are speaking as employees, not as citizens, their speech rights mostly evaporate. Schools can tell teachers what to say in class and what curriculum to teach without violating the teachers’ First Amendment rights, because while teaching, a teacher is speaking as an employee.

To limit school employees’ speech as citizens, as with the Pelham employees wearing thin blue line flags, the government has to show that the employees’ speech substantially interfered with their official responsibilities. Based on this rule, a school district can bar the wearing or display of thin blue line flags, given that some students may associate them with hostility against people of color. The theory would be that a teacher who sends a message associated with racism, even obliquely, can’t educate students effectively.

But here’s where things get still more complicated. According to news reports, the school district initially applied its policy against political speech by employees to ban thin blue line flags, but not shirts listing the names of victims of police brutality and the word “Vote.” The Pelham superintendent, Cheryl Champ, reversed course and apologized “for not enforcing this policy evenly at its outset, which I recognize created an appearance of being one-sided.”

The asymmetric enforcement of the political speech ban almost certainly violated of the First Amendment. It’s a well-established  rule that, where the government does have the authority to limit speech, it must do so in a way that is “viewpoint neutral.” The government can’t ban political views it doesn’t like while allowing speech it considers acceptable or favorable. (This is the principle that blocks state and local governments from criminalizing hate speech, which the Supreme Court deemed viewpoint based in an opinion by Justice Antonin Scalia.)

To ban the thin blue line flags but not Black Lives Matter shirts is not viewpoint neutral. In practice, the thin blue line flags are part of a political debate in which they are in dialogue with BLM and its symbols. It follows that, at least for a short time, Pelham may have violated the free-speech rights of school employees who wanted to display the thin blue line symbol.

To be clear, state actors like public schools are different from companies. Companies aren’t bound by the First Amendment to neutrality and indeed are protected  by the free expression principle when they make viewpoint-based political choices in what they allow.  But government is different. It can’t, under existing constitutional precedent, pick and choose only messages that it deems morally right — like anti-racism — and deem them to be “non-political” and therefore allowed while morally wrong ideas, like racism, are prohibited. Schools don’t have to be neutral in what they teach, of course. A school district may teach the story of Martin Luther King but not that of George Wallace. But the state cannot bar its employees from making statements in favor of Wallace while allowing them to speak in favor of King. 

When I teach First Amendment law to my students, I always make the point that in the real world, when you litigate cases, you will often find that local authorities have permissible rules on the books but then apply them in ways that violate the Constitution —sometimes in good faith, sometimes not. That makes for messy litigation.

In court, lawyers for the school district would be able to say they are now enforcing the policy evenhandedly and so therefore should be allowed to continue to do so. Lawyers for the employees whose speech was blocked would be able to say that the school district did violate their rights for a time, and that it displayed viewpoint bias and even animus against them in doing so.

A court would have to sort through these competing arguments, both of which have merit. Probably the correct outcome would be to award some nominal damages for the brief period of asymmetric, viewpoint-based enforcement, while upholding the current enforcement of the policy provided it is evenhanded.

Or even better, maybe the entire issue can be resolved without going to court all. The Constitution is there to protect free expression while still enabling schools to function. But without common sense on all sides, constitutional rules aren’t always enough to ensure good outcomes.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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