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School districts often are faced with the question of what speech can be regulated on their campuses. Can they prohibit a coach’s act of praying on the field after a game? What about disciplining a teacher for making a complaint to the State Education Department or writing a critical letter to the editor of a newspaper? Does it matter if the complaint is done by way of a union grievance as opposed to outside the chain of command?

It is a balancing act to respect an employee’s First Amendment rights while simultaneously ensuring that the exercise of those rights does not interfere with the pedagogical mission of the district. Fortunately, the courts have provided guiding principles to help school officials navigate this high-wire act.

The First Amendment and public employees

The First Amendment was specifically made applicable to the states – and by extension, school districts – in 1947, when the U.S. Supreme Court considered whether a New Jersey school district could continue to pay for transportation of children attending private religious schools. In Everson v. Board of Education, Justice Hugo Black said the practice was lawful but famously added that “a wall between church and state” must be kept “high and impregnable.”

Just over 20 years later, in 1968, the Supreme Court issued a landmark decision in Pickering v. Bd. of Ed. of Township High Sch. Dist. 205, which concerned an Illinois teacher who was dismissed after writing a letter to a local newspaper in which he accused the superintendent of “totalitarianism” and said the school board spent too much money on athletics.

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