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How Much of a First Amendment Right Do Public Schools Get?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 1

Freedom…Censorship…Discipline. The First Amendment is one of the bedrock principles that this nation was founded upon and encompasses the basic freedoms that we all enjoy every day. The United States Supreme Court bears the important, and often difficult, the duty of ultimately clarifying the First Amendment’s bounds and where to draw the line in the sand between protected and unprotected speech. Recently, the Court has taken several cases that explore just how far the First Amendment protects individuals within the public-school systems.

In the classroom, it is crucial to realize that the protections of the First Amendment remain, at least to some extent. To be clear, the First Amendment’s protections do apply to all members of public schools, as neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”2. Even today, over 50 years after the Court first made this ruling, this powerful line of freedom rings true.

As far as school district employees, their freedom of speech is primarily determined through an analysis of whether the speech was work-related or personal. Simply put, the test looks at the capacity in which the employee is speaking. Are they speaking as a citizen, or as an employee? If the employee is speaking on behalf of the school, or as part of their duties as a public-school employee, then the speech is likely not as protected as it would be if it were more personal in nature. In other words, because the employee is speaking as an employee, the employee may be disciplined for failing to satisfy his or her job duties or other job requirements. If making statements to the public is not within the employee’s job duties and responsibilities, the employee is likely not speaking as an employee, but rather as a citizen. In general, personal speech is granted a lot of respect, but public-school employees must be careful to ensure that their speech is private, and not job-related.

In addition, the age of social media has brought a whole new world of First Amendment issues and questions. Generally, the rulings have been falling on the side of grating the social media accounts of students and employees a wide range of protection. For example, in 2021 the Supreme Court held that a student’s frustrated expression through SnapChat was protected by the First Amendment, and punishing the student because of the rant directly violated these rights.3 Similarly, in 2012 the Supreme Court of New York emphasized the importance of teachers restricting access to their social media accounts by holding that a teacher’s termination for posting an inappropriate message was overly harsh since no students were able to see the message.4 Overall, we all must be wary not only of what we post, but who will view what we post. As the saying goes, once it’s on the internet it’s there forever.

Another important aspect of the First Amendment’s freedoms is the freedom of religion, as well as the prohibition on the establishment of religion. The prohibition, otherwise known as the “Establishment Clause” provides that no government actor may promote a particular religion on behalf of the government. But does this apply to public school teachers? Well, the answer to this used to be a simple, “Yes, teachers cannot promote any religion or lack thereof.” However, in another attempt to further define the line that extends the First Amendment, the Court took up a case involving a high school football coach who was suspended for praying on the field after football games.5

This case, essentially, has decided the place of religion within public school settings. The Court used this case to investigate faith and the First Amendment, and their decision will dramatically impact the ability of public-school employees nationwide to practice their faiths more openly around students. The coach is fighting for his right to practice his faith, as he said, on his own. He never forced the players to join, and all the players that joined his ritual did so freely. The school district’s argument, in this case, is that the coach’s act of praying at mid-field after football games was an act of the school district endorsing the coach’s religion. Further, parents of some of the players have complained that their children felt pressured to pray with the coach, and in fact, were not acting “freely” at all. All players want more time on the field, and some students may have felt the pressure to pray with the coach in order to gain more playtime. It is important to note that the lower courts, in this case, sided with the school district, but the Supreme Court’s decision is based on what it believes should define the First Amendment’s extension in public schools.

Be it the current composition of the Court or the state of our communities, this issue will be cleared up and decided for us as the high court has issued its ruling. The consequences of this decision, however, remain to be seen. Be sure to read next month’s article as we discuss in more detail this case, the Court’s decision, and how it will impact school districts across the nation.

1 U.S. Const. amend. I.

2 Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).

3 Mahanoy Area Sch. Dist. v. B. L. by and through Levy, 141 S. Ct. 2038 (2021).

4 Rubino v. City of New York, 950 N.Y.S.2d 494 (N.Y. Sup. Ct. 2012), aff’d, 965 N.Y.S.2d 47 (N.Y. App. Div. 1st Dept. 2013).

5 Kennedy v. Bremerton School District, 21-418.


This article was written by Noah Alford, a law clerk for JCA.