Education Law Attorney
Kennedy & Graven, Chartered
November elections—particularly in the wake of a rancorous presidential campaign or when a referendum is on the ballot—create unique dilemmas for public school districts. They must remain politically neutral without impermissibly infringing upon their employees’ rights to free speech and association. This sometimes delicate balance can be maintained if certain legal principles are followed.
Public school board members and school district employees should understand that the law limits, to some degree, their right to personal political expression. State law prohibits school district funds from being used to support political candidates, parties, or issues. The Minnesota fair campaign law forbids school district board members and employees from using “official authority or influence to compel a person to apply for membership in or become a member of a political organization, to pay or promise to pay a political contribution, or to take part in political activity.”
The same law, however, specifically prohibits school districts from imposing or enforcing additional limitations on the political activities of their employees. Outside of district board rooms and school classrooms, board members and employees may otherwise engage in political activities on the same basis as other citizens. The First Amendment guarantees all citizens the right to free expression on matters of public concern. Campaign literature and speech regarding political issues presumably address matters of public concern and thus constitute protected speech.
Given this framework, school districts often face the following questions:
Q: What may teachers say to parents or students at school regarding the election?
A: At school, teachers may provide parents and students with factual information, such as when and where to vote. They may not, however, tell parents or students how to vote (i.e., “yes” or “no” on an issue or for a particular candidate) while working in their official capacities as teachers (i.e., during instruction, before or after school activities, and conferences).
Q: Where and when may teachers wear buttons?
A: A federal court has ruled that a school district may ban teachers from wearing political campaign buttons while working because wearing “political paraphernalia may improperly influence the right of students to learn in an environment free of partisan political influence.” Weingarten v. Bd. of Educ. of City Sch. Dist., 680 F. Supp. 2d 585 (S.D.N.Y. 2010). However, in the absence of a policy prohibiting political buttons at school, teachers generally may wear buttons to work just as they would anywhere else—provided that the buttons do not result in disruption to the educational environment or do not have a coercive influence on students or other staff.
Q: May teachers place signs on their lawns?
A: Yes.
Q: May school district employees engage in political fund raising activities?
A: School district employees may participate in private fund raising activities. However, state law prohibits them from using their official authority or influence to coerce others to take part in the fund raising activities.
Q: May teachers write letters to newspapers?
A: Teachers have the right to express their personal opinions and may do so in the media. While they may identify themselves as school district teachers, they also should make it clear that the letter expresses only their own personal beliefs. The letter should not be written on school district letterhead and, if sent by e-mail, should not come from a school district computer. School district funds may not be used to support a political candidate or promote a position on an issue. Using school district supplies or equipment would be tantamount to using school district funds.
Q: May school district employees serve on political campaigns or committees?
A: Yes. School employees enjoy the same rights to free speech and involvement in political activities as private citizens. However, they must participate in the capacity of a private citizen and not as an official representative of the school district.
Q: May political groups or committees meet in school district buildings?
A: They may if permitted by school board policy and on the same basis as other political groups and committees. In other words, if the school district allows one political group to use its facilities, then it must make the facilities open to all political groups.
Q: May teachers distribute political literature via district and school mailboxes?
A: The ability of teachers to use school mailboxes for political purposes depends largely on individual district policy and practice. Generally, teachers’ mailboxes are school district property and are designated as nonpublic forums. This means the district has the authority to restrict access to its mailboxes so long as the restrictions are viewpoint neutral and reasonably based upon the purpose served by the mailboxes. See Educ. Minn. Lakeville v. Indep. Sch. Dist. No. 194, 341 F. Supp. 2d 1070 (D. Minn. 2004).
In most schools, the purpose of teacher mailboxes is to facilitate district business. Materials endorsing a particular candidate or issue do not relate to school business. Also, allowing private expression in a nonpublic forum may imply government endorsement of that expression. “Avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum.” Id. at 1076.
The status of a nonpublic forum may be changed, however, if it is opened for public discourse, even of a limited nature. Thus, if a school district opens its teachers’ mailboxes to political campaign literature for one candidate or one particular party, it ultimately may be required to allow distribution of political literature for all candidates and all parties. This would result in the mailboxes becoming a mode for political debate and discourse, contrary to their original intent.
Q: What may a school district say in district, school, or classroom newsletters?
A: Such newsletters may provide information about where and when the election will be held. They also may provide factual financial data about the district if a referendum is on the ballot. However, the newsletter may not advocate for a specific candidate or position. Again, the underlying principle is that school districts may not expend district funds to support a particular political viewpoint.
Q: May school district employees contact parents and students from their home telephones or home computers and urge them to vote for a particular candidate or position?
A: The ability of school employees to engage in such activity depends upon whether home telephone numbers and home e-mail addresses are deemed public directory information under the district’s data privacy policy. If the information would be available to any citizen, then district employees may use it to communicate with parents and students in this manner. If, however, the information is not available to the public as directory information, school employees may not use the telephone numbers and email addresses to communicate with parents or students on political matters unless the numbers are obtained from some other public source such as a telephone book.
Q: Do the rules change when a school district employee is off-site and out in public?
A: Generally, yes. While school district employees may not advocate a specific political position on school premises during the school day while on duty, they may certainly, in their personal capacities, engage in political activities on the same basis as any citizen. •
This article is intended to provide general information with commentary. It should not be relied upon as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Greg Madsen is an attorney and shareholder at Kennedy & Graven, Chartered, who practices education and employment law, and is certified by the Minnesota State Bar Association as a Labor and Employment Law Specialist. For more information, please contact him at (612) 337-9305 or http://www.kennedy-graven.com. This article is an update to a Fall 2008 Leaders Forum article by former Kennedy & Graven attorney Charles E. Long.
© Gregory S. Madsen (2016). Used by permission.
