By David Nash, Esq., Director of Legal Education and National Outreach, Foundation for Educational Administration
As we enter the final stages of the 2025 election season, emotions are running high around elections for everything from governor to school board member. Those heightened emotions will likely continue to play out in the weeks following Election Day. It is critical that school employees understand how to navigate political discussions both in the workplace and in their private lives on a wide range of sensitive topics, while minimizing legal exposure. The framework below outlines the governing law, recurring challenges, and practical steps school staff can take to engage responsibly in political expression while fulfilling professional obligations.
The environment has become particularly fraught in light of recent acts of political violence across the nation, and the comments made in response to those incidents. There have been a number of recent cases in which school employees have commented publicly, often on social media, on acts of political violence. As we will discuss in this article, some of that commentary, while permissible as a citizen, has crossed lines of acceptable speech for school employees as laid out in Pickering v. Board of Education, 391 U.S. 563 (1968), discussed in detail below. While such incidents certainly represent matters of public concern, and the employees in some cases made clear they were commenting in their personal capacity and not as school employees, there have been instances where the comments so “poisoned the well” that they undermined the ability to maintain essential working relationships and thereby justified disciplinary action, including termination in some instances. For example, any comments by school employees seeking to justify acts of political violence would inevitably undermine the ability to maintain critical working relationships with students, parents, staff and the larger community.
Legal Framework for Analyzing Staff Member Speech
Public school employees retain First Amendment protections, but those rights are balanced against the employer’s interests in effective and disruption-free operations. The U.S. Supreme Court first spelled out the legal standard for analyzing school staff member speech in the case of Pickering v. Board of Education, 391 U.S. 563 (1968), which involved Marvin Pickering, an Illinois high school science teacher, who was terminated after writing a letter to the editor of a community newspaper in which he criticized the district for prioritizing athletics over academics in their allocation of school funding.
In an 8-1 ruling, the Court held that the district violated Pickering’s First Amendment rights by terminating him for having expressed his views on a matter of public concern, without showing that Pickering’s statements were knowingly false or in reckless disregard of the truth. In that case, the Court laid out a three-part test for evaluating staff speech, which is still used to this day. Under this test, three key questions are asked: 1) Whether the staff member spoke on a matter of public concern; 2) Whether the staff member spoke as a private citizen rather than pursuant to official duties; and 3) Whether the speech threatened to disrupt close working relationships or school operations.
In the nearly 60 years since this case was decided, the Supreme Court and lower federal courts have elaborated on each of the three prongs, clarifying that these prongs provide a series of factors to be considered in assessing First Amendment rights. For example, when speech involves a matter of public concern, such as determining priorities for school funding, the school employee has greater legal protection. By contrast, when the issue involves a personal grievance with a colleague or supervisor, that speech is not entitled to the same level of protection. Similarly, when an employee is expressing their personal opinion on their own time and making it clear that they are NOT speaking on behalf of the school district, greater protections apply. By contrast, when a school employee is speaking for the school district or engaged in official duties such as teaching the district curriculum, staff members do not have a First Amendment right to substitute their personal views for those of the district. Finally, Courts have identified many situations where the manner in which a school employee expresses their views may “poison the well” to such an extent that the expression undermines the close working relationships that school employees need to maintain with students, parents, other staff and the community. For example, in the case of In Re O’Brien, where a 1st-grade teacher, on her own time outside of school on school media, expressed the view that she felt like a “warden to future criminals” the school district was justified in bringing tenure charges and ultimately terminating that teacher.
It is important to stress the distinction between staff speech, which is analyzed under the Pickering test, and student speech, which is analyzed under the test laid out by the U.S. Supreme Court in Tinker v. Des Moines, which focuses on whether the speech in question caused a substantial disruption to the school environment or interfered with the orderly operations of the school. To the dismay of some school employees, there are many examples of speech that may be protected under the First Amendment for students that would not be similarly protected for staff members.
Other Key Legal Considerations
Anti-discrimination and anti-bullying obligations – Staff political speech can implicate state and federal anti-discrimination laws, including the New Jersey Law Against Discrimination (LAD), as well as New Jersey’s Anti-Bullying Bill of Rights. For example, political expression that targets protected classes, contributes to a hostile educational environment, or otherwise undermines equal educational access may trigger legal duties to intervene and remediate.
Religious expression – Staff religious expression at school events requires careful analysis post-Kennedy v. Bremerton School District. In this case, the Supreme Court recognized a football coach’s personal, post-game prayer as protected by the First Amendment. It is important to stress that the coach’s prayer in that case occurred at the end of football games at a time when students were free to leave and without any evidence that students were being pressured to join in. However, schools must still avoid Establishment Clause violations and ensure that religious expression does not appear to be school-endorsed.
Social media and boundary issues – Electronic communications policies are required under New Jersey law and help address staff-student boundary concerns that often surface when political views are shared online. Districts should reinforce expectations that staff maintain professional boundaries and avoid interactions that blur roles between students and staff or give rise to allegations of favoritism.
Public comment at board meetings – Speech in public comment is constitutionally protected; and efforts to engage in viewpoint discrimination may result in violation of First Amendment rights. This was addressed in the case of Besler v. West Windsor-Plainsboro (2010), in which the New Jersey Supreme Court held that the school district had engaged in illegal, viewpoint discrimination by stopping a member of the public from commenting negatively on a school employee. Boards should use clear, consistently applied time, registration, and decorum rules and avoid content-based restrictions.
Relevant Case Themes and Illustrations
Employment actions tied to political participation – An Allentown, Pennsylvania teacher terminated after posting a video showing attendance at the January 6, 2021 rally in Washington, D.C., (without evidence of approaching or breaching the Capitol) prevailed on a First Amendment claim and received a monetary award. The matter-of-public-concern and citizen-speech prongs were central, and the lack of nexus to criminal conduct weighed in the teacher’s favor.
Hostile environment risks from political or ideological posts – Public officials and educators who engage in speech that demeans protected classes can undermine community trust and impair school operations, supporting discipline or ethics sanctions. For example, anti-Muslim social media posts by a board member supported a censure due to negative operational impact and loss of public confidence. See In the Matter of Daniel Leonard, School Ethics Commission decision (11/16/21), Commissioner (8/12/2022). Similarly, racially charged comments posted on social media about the murder of George Floyd resulted in tenure charges and the termination of a teacher. See In Re Donna Coleman, tenure arbitration decision (8/20/21).
It is important to stress that where school employees are acting to affirm human rights (e.g., affirming the rights of members of the LGBTQIA+ community) and ensure a safe and affirming environment, that speech is protected even though it may be deemed as “political” speech by some. Along those lines, the New Jersey Attorney General and Commissioner of Education issued joint guidance in 2023 indicating that permitting symbols of affirmation in classrooms, such as rainbow flags, represented an appropriate signal of a safe, affirming environment for students, rather than being impermissible political speech. For information on legal obligations to ensure students have access to diverse and inclusive materials in school libraries see the LEGAL ONE article on the Freedom to Read Act. See also the School Ethics decision in a case against a school board member, Noelle O’Donnell, where it was held that the Board Member did not violate the school ethics act by wearing a rainbow flag mask.
Best Practices Considerations for School Staff
1. Know the policy framework – Review district policies on staff conduct, political activities, electronic communications, anti-discrimination/harassment, and social media. New Jersey requires districts to adopt electronic communication policies regarding staff-student interactions.
2. Separate personal speech from official duties – When engaging in political speech, do so clearly as a private citizen: outside work hours, off school property, without district resources, titles, logos, or indicia of endorsement. The Pickering test weighs citizen speech on matters of public concern more favorably than speech made in official capacities. Avoid using school email or platforms for political advocacy. Maintain disclaimers where appropriate to clarify you do not speak for the district.
3. Avoid speech that targets protected classes or erodes trust – Refrain from political commentary that demeans or stereotypes based on protected characteristics, which can create hostile environment concerns, compromise public trust, and cause operational disruption, supporting discipline.
4. Use caution on social media – Assume anything posted can reach students, parents, colleagues, and media. Even if off-duty, posts may be actionable if they cause substantial disruption, interfere with operations, or undermine confidence in your ability to serve students fairly. Maintain professional boundaries with students online. Avoid “friending” or direct messaging students from personal accounts. Follow electronic communication policies.
5. Handle school-sponsored political content with neutrality and age-appropriateness – If facilitating debates or mock elections, establish clear rules that ensure viewpoint neutrality and age-appropriate content. Document educational objectives, selection criteria, and editing decisions to mitigate claims of viewpoint discrimination or censorship. When editing school-produced content, ensure that reasons are pedagogical, age-appropriateness, or compliance-based—not viewpoint-based—consistent with curriculum and standards.
6. Advise student journalists within statutory limits – Train student journalists on legal constraints: libel, privacy, obscenity, unlawful content, and material disruption. If considering prior restraint, cite the specific statutory basis and maintain documentation that ties the restraint to the allowed categories.
7. Prepare for public meetings – Understand that community political speech is broadly protected. If criticized, rely on established meeting procedures rather than engaging in back-and-forth. Defer personnel matters to appropriate closed sessions. Administrators should ensure consistent enforcement of time limits and decorum rules to avoid viewpoint discrimination claims.
8. Report threats and manage disruption – True threats are not protected. Follow district protocols and law enforcement referral procedures. New Jersey law provides criminal penalties for terroristic threats, including attempts to terrorize or cause evacuations. Document disruptions tied to speech to support reasonable restrictions or discipline consistent with policy and law.
9. Training and culture – Promote civil discourse tools for staff and students to reduce polarization and dignity violations that escalate into legal risk (one useful tool to consider to promote respectful discourse is The Dignity Index). Reinforce curriculum-aligned anchors, affirmation of human rights, and information literacy to ground political discussions in standards and shared facts.
Conclusion
It is important for school district personnel to understand the legal parameters for political expression. By distinguishing private-citizen speech on matters of public concern from job-duty speech, applying anti-discrimination and anti-bullying obligations, and enforcing content-neutral procedures in public forums, school employees can engage in expression while minimizing legal risk. Staff should anchor their political expression in professionalism, dignity, affirmation of human rights, and policy compliance—especially on social media and in school-sponsored contexts—thereby modeling responsible citizenship for students and the community.