Posted on July 28, 2021
By: Lily Crespo Esq.
Quick takeaway: Schools can take disciplinary action against any employee for engaging in speech that is not protected, including political speech that may show up in the classroom or on social media. However, the laws and circumstances surrounding these types of First Amendment issues are rarely clear.
What happened: This is America, and we all have First Amendment rights. In fact, the First Amendment rights of educators are more robust than those of private employees. This is because public employers are “state actors” governed by the First Amendment, unlike private employers. Schools must respect their employees’ rights to speak “as a private citizen” on “matters of public concern.” You’ll recognize those phrases from iconic cases like Pickering, Garcetti, and Connick.
However, “when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. . . When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410 (2006).
Case in point: Judge Jane E. Magnus-Stinson ruled in a 52-page decision last week that the school in question could not accommodate “religious beliefs without sustaining undue hardship” on the school, students and faculty.
Background: In 2017, the Brownsburg High School implemented a new policy that allowed transgender students to identify their preferred names and pronouns, and required employees to refer to students in line with those preferences. Shortly thereafter, Mr. Kluge, a high school music and orchestra teacher, informed the superintendent that he would not abide by this directive because it conflicted with his religious beliefs against confirming gender dysphoria.
Mr. Kluge was instructed that he had three choices: (1) abide by the policy and refer to students by their preferred names, (2) resign, or (3) be terminated without pay. Kluge resigned, and then sued arguing that the school violated his First Amendment rights to freedom of religion and speech.
Mr. Kluge ultimately lost his case because “Continuing to allow Mr. Kluge an accommodation that resulted in complaints that transgender students felt targeted and dehumanized could potentially have subjected the school to a Title IX discrimination lawsuit brought by a transgender student,” Judge Stinson wrote. “Whether such lawsuit would ultimately have been successful is not for the Court to decide at this juncture, as it is sufficient that the state of the law during Mr. Kluge’s employment created a risk of liability, and BCSC considered that risk in determining how to resolve Mr. Kluge’s objections to the policies concerning transgender students.”
What the decision means for schools: During these passionate times, it is important that school staff remember the limitations and obligations they have when fulfilling their duties. This means staying on-task with students, rather than unnecessarily spending valuable instructional time expressing political views that aren’t part of your curriculum or that particular class. This also means that when political topics are appropriately a part of classroom discussions, teachers must remain professional, respectful, and educational.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.