As a resource for our members, NEA recently released a guide to help educators understand their rights and limitations when speaking up for public education and students. Alice O’Brien, NEA’s General Counsel, is back on the podcast to break down the key parts of that report and let educators know what their rights are when advocating for the issues they are most passionate about.
Mentioned in this episode:
Read the full Educator Advocacy Rights report: https://www.nea.org/advocacy-rights
Dr. Alice O'Brien (00:02):
We are living in a time when it has never been more important for educators to speak up and out about the importance of public education, about teaching students to think for themselves, understand all of our history, and grow into active and engaged full participants in our society.
Natieka (00:21):
Hello and welcome to School Me, the National Education Association's podcast dedicated to helping educators thrive at every stage of their careers. I'm your host, Natieka Samuels. In light of recent state laws targeting educators and marginalized communities as well as the challenges to curricula and school libraries, it's more important than ever that educators understand the power they have to advocate for change as well as how to use that power without putting themselves and their livelihoods at risk. As a resource for our members, NEA recently released a guide to help educators understand their rights and limitations when speaking up for public education and their students. Alice O'Brien, NEA's General Counsel, is back on the podcast today to break down the key parts of that report with us. So to start, can you give us an overview of the report on educator's rights to take political action and advocate for their causes?
Dr. Alice O'Brien (01:14):
If you go to the NEA website or you just go to Google and you Google the Educator Advocacy guide, you will come upon a document that NEA has put together to put in one place the answers to all the frequently asked questions that we get from NEA members about their rights to advocate for their students, their profession, and public education. The full guide you can download from the NEA website and you can also scroll through the website to see all the major topics that the guide covers broken down into bite-sized segments. The guide reviews the legal protections available to educators, including the First Amendment, civil rights laws, teacher tenure, collectively bargain rights, and talks about where educators have the greatest protections for their advocacy, where they should be most cautious and steps they can take to protect themselves.
Natieka (02:06):
And what was the motivation for creating this guide at this time?
Dr. Alice O'Brien (02:11):
So we decided to do this for a few different reasons. One, we do get lots and lots of questions, you won't be surprised, from members about these issues. And we wanted to put the answers in one easily accessible place so that everyone would know the rules of the road for educator advocacy and our members would be confident in their rights and protections and when they were speaking up for students and for public schools. Two, we're living in a time when it has never been more important for educators to speak up and out about the importance of public education, about teaching students to think for themselves, understand all of our history, and grow into active and engaged full participants in our society. Since 2021, we have had a large and growing number of states passing laws or issuing rules that restrict what educators can teach about race and racism and how they can recognize LGBTQ individuals in their curriculum and their schools.
(03:16):
We have had ever-growing numbers of book bans including new state laws, past legislative session that are aimed at expediting and politicizing the process of selecting materials and books in school libraries. We also and not unrelatedly have had growing attacks on public education itself as a number of states have moved to fund unregulated private schools through universal vouchers programs that often discriminate against students on many different bases. And of course we have the ever present problem of inadequate and unequitable school funding and the continuing failure to pay educators as the professionals that they are. So we wanted to make sure our members who want to speak up and advocate on these issues know how to do so and in what lane that advocacy is most protected. All that said, I do want to be clear, and we say this in the guide a number of times. That the guide is not intended to provide individual legal advice for members. For specific situations, members should always contact their local or an attorney.
Natieka (04:25):
The report emphasizes the importance of educators engaging in political and advocacy activities. Can you explain why it's crucial for educators in particular to exercise their rights in these areas?
Dr. Alice O'Brien (04:38):
Educators are the most respected voices in every community. Everyone has a teacher or teachers that change their lives and everyone who is a parent with children in schools knows and appreciates how much educators do and how indispensable they are. Educators' voices and advocacy are powerful and persuasive and it's important for the public to hear from the experts about what students and our schools need. So we want to make sure that educators know that they are protected when they advocate for their students and for public education.
Natieka (05:13):
And one of the key aspects discussed in the report are First Amendment rights. So how do these rights apply to educators when it comes to expressing their opinions or engaging in political activities?
Dr. Alice O'Brien (05:26):
So the First Amendment is a little bit tricky, but there are two basic requirements for making sure your advocacy is protected by the First Amendment if you're a public employee, like a public school teacher or a public school educator. One is a place requirement and one is a topic requirement. In terms of place, your speech needs to be done off duty, away from school in order to be protected by the First Amendment. So when you're talking in a parent-teacher conference or you're talking in your classroom, you likely are not protected by the First Amendment. In terms of topic, your speech needs to be about a matter of general public interest, not a specific issue with a school, and definitely not about individual circumstances of a particular student or a particular interaction with a particular parent. So some examples of speech and political advocacy that are protected are speaking to the press, writing letters to the editor about school funding, about the need to teach students all of US history and not just the best or most glorious bits of it.
(06:33):
Political participation like attending protests, donating to causes and campaigns, signing petitions, running for office like the See Educators Run folks who run for office on their school boards or in their state legislatures. All of that is classic First Amendment protected activity. Testifying at school board meetings or in legislative hearings. There is a common misconception that educators can't or shouldn't do that, but actually doing that is a classic form of political speech that is protected by the First Amendment. As long as educators don't use offensive or disrespectful speech and make clear that they're speaking in their personal capacity, not as part of their job duties on a matter of public concern. For example, on a school board policy, not a private grievance with their employer, their speech is going to be protected by the First Amendment.
(07:27):
In all these places, it's important to keep tabs on the tone of your speech. You can lose First Amendment protection if your speech is profane or disrespectful or if your speech attacks or criticizes individual students or parents or causes a disruption at school. Courts will balance your interest in your speech against the school district's interests in maintaining order in school to determine whether your speech is or is not protected by the First Amendment. Disruptive or disrespectful speech will often be found to fall outside the scope of First Amendment protection.
Natieka (08:03):
It sounds like there is a lot of nuance there, maybe even about what count says disrespectful, but do educators have any other legal protections for when they speak up that we should be mindful of?
Dr. Alice O'Brien (08:14):
Yes, and you are absolutely right. There is a lot of nuance there and there is a lot of disagreement and fighting over what speech is and isn't disrespectful and in what context. But the First Amendment is one but definitely not the only protection that educators have. At work in a school district that has collective bargaining, your collective bargaining agreement will protect you for your advocacy at work, particularly if you are advocating for improvements in working condition with your colleagues. Federal and civil rights will also protect you from retaliation for your advocacy for students too if you are speaking up against discriminatory or unlawful treatment of students such as failures to comply with the IDEA or discrimination against students based on a protected characteristics such as race or sex or sexual orientation or gender identity. To gain protection under these laws, you need to challenge the discriminatory treatment, not just advocate for a particular group of students.
(09:10):
For example, if you think the girls teams are severely underfunded as compared to the boys teams, don't just say the girls teams need more money. You would need to say... Advocate that the girls teams are getting less money because they're girls and they need to be given the same treatment as the boys teams. If you believe you have been discriminated or retaliated against, contact your local union for assistance and check out the specific information in the guide about how to file a retaliation claim or discrimination claim and what you ultimately would need to be able to prove up to prevail on a claim. In almost every state, you also will be protected by tenure laws against arbitrary or unfair discharge or dismissal as long as you have worked for the school district for a number of years. You can find out the status of tenure laws in your state in the guide too by looking for your state on the national map and clicking on that state to see what tenure protections are provided to you.
Natieka (10:12):
The report talks a lot about social media as well because it's obviously a larger part of our life and can be pretty public or fairly private, but either way it's a big part of a lot of people's lives. So can you talk about how social media usage can intersect with political activities and what should educators consider or be aware of in their use of social media?
Dr. Alice O'Brien (10:36):
So social media is powerful and the law hasn't quite figured out what to do about it. For First Amendment purposes, the law struggles with trying to figure out where social media speech occurs, right? Because social media speech, as you were saying, sometimes it's very public, sometimes it's pretty private. Sometimes you intend for it to be private, but it ends up being very public. And so if your social media speech is... If you want it to be protected under the first Amendment, you do want to make sure that the community that you are sharing it with is not just your school community and definitely not your current students. You will have the most protection under the First Amendment and also under tenure laws too when you are advocating or posting to the general public or to the community and not just talking to the school community.
(11:37):
Two, you want to make sure on social media, and this is harder because it's sort of outside of the genre. A lot of the speech on social media can be more disrespectful, is not written in the king's English so to say. But courts will hold you to the same rules in terms of speech being respectful in order for it not to lose its protection under the First Amendment. And also, hold educators in particular under state tenure laws to higher standards in the general community because educators are looked up to as role models. And so speech on social media that doesn't comport with the idea of a tenure board as to how an educator should comport themselves can be problematic and can expose you to discipline. So two basic rules. One, make sure you are talking to a broader public community, not to the school community. And two, make sure your speech is respectful in order to get the most protection for your speech on social media.
Natieka (12:51):
So don't post these things in the community Facebook page, but putting it out on your public Twitter might be a little bit more permissible it sounds like.
Dr. Alice O'Brien (13:02):
Yes. And definitely do put those disclaimers on your Facebook page or on your Twitter or any other social media services you use saying, "These are my views and my views alone. I'm not speaking as a school district employee, I'm not speaking as a teacher. This reflects my personal viewpoints."
Natieka (13:21):
Thanks for listening to School Me and a quick thank you to all of the NEA members listening. If you're not an NEA member yet, visit nea.org/whyjoin to learn more about member benefits. I'm glad you mentioned that because I see a lot of those disclaimers on journalists or anybody who's like a spokesperson for a company. And so it's important to think that educators are also spokespeople for their schools, so it makes sense for them to include that disclaimer as well. So there's also advocacy at work about working conditions or professional settings. So what are the guidelines or best practices for educators when it comes to political discussions or activities that happen within the professional setting?
Dr. Alice O'Brien (14:05):
You do need to be careful about what you say, well, on the job at school. Public schools can control what their employees say on the job. Teachers have the least protections while they are teaching in their classrooms. And other educators also have the least protection when they are speaking at work while performing their work duties. There are still ways to advocate for students within the bounds of these constraints, but members need to proceed with caution. Pay attention to school district rules and policies and talk with your local union representative about the best way to advocate for a change and how the school is handling a particular issue.
Natieka (14:42):
And everybody's not going to be in a community that reflects their own views obviously. So educators are often working in a diverse community with a lot of different political perspectives. So how can educators express those personal beliefs while appearing and maintaining respectful and making that learning environment inclusive for all of the students who are coming from those diverse backgrounds?
Dr. Alice O'Brien (15:07):
I think educators need to pay attention to what they're teaching, right? And they'll have more latitude depending on what they're teaching. Obviously if you're teaching algebra, you can't launch into a discussion about your personal political beliefs about the Ukrainian-Russian War. There will be consequences for doing that and your speech is not going to be protected. And even in cases where you're teaching English or history, school districts and states may have policies saying that as an educator your job is to engage students in critical dialogue and help them develop their own point of views, not indoctrinate them in your own point of views. And so in those circumstances, it's important to be clear with your students. And so many educators are so adept at this, I feel like I don't even need to say it in terms of turning back questions about their personal beliefs into questions where the students have to reflect on their own beliefs.
(16:11):
And so in those kinds of conversations, educators need to teach aligned with the state standards, need to be clear with students that they're expecting the students to learn the content and the state standards, the content that the teacher is teaching. But the views that the students have on that content are the students' own to develop and what the students need to learn and be able to demonstrate is that they can marshal the facts and the arguments in support of their own views, not parrot back some view that the teacher is handing to them.
Natieka (16:47):
What about in places where there are particular instructional approaches in the classroom that have been targeted? For example, the conversations around teaching honest history and inclusive history. What about those educators who might be worried about pushback from the community if they continue to act in alignment with their views about, for example, teaching the truth in history?
Dr. Alice O'Brien (17:14):
So I think the first step is to figure out what law is in place in your state and what it actually says because there's a lot of misinformation out there as to what these laws do. So the guide does include a map that you can go to and click on to find out whether or not your state has one of these laws restricting in some way how you teach about race or racism in your classroom. And in each state that has a law like that, NEA has state specific know your rights guides that walks through what the law actually says and what you still can teach. It's really important to understand that even in states that have those laws, educators can and should teach all of history. The state standards in every single state require that teachers teach about slavery, about reconstruction, about the violent white supremacy that brought reconstruction to an end, about slavery as a cause of the Civil War, about Jim Crow.
(18:23):
That's all in the state standards even in the states that have these laws. So definitely don't overreact to these laws. Don't assume you can't teach the way you always have taught. Check out whether or not your state has a law. Check out the know your rights guides so you know exactly what the law says and know that if you are teaching a class that you have taught before, you are teaching in a way that is age appropriate and aligned with state standards and aligned with either how you have taught or how other people in the school have taught the subject. You are on really safe ground. If there's any doubt, you're trying something new out, you're going to broach a new way of approaching a topic. You want to talk about a current event which you think may be controversial in the community, consider checking in with your principal or your department head before the lesson so you can address any concerns they have upfront.
(19:25):
Modify the lesson if you think what they're proposing makes sense. Also, check in with your local union too for their support and their ideas about how to go about teaching a particularly controversial issue. Always make sure that when you're teaching an issue that may be controversial in the community, that you're clear about that this is content which is aligned with the state standards. That you're not teaching your personal views. That you are teaching subject matter which the state requires that you teach. You're not advocating for a particular view. You're urging the students to dig into the material and come up with their own views on particular issues. And if not withstanding all of this, you get pushback from your school district or an administrator comes in and says, "You can't teach this book or you can't use these materials."
(20:26):
Or a parent comes in and says, "This book is too gender-affirming, too gender inclusive and shouldn't be part of your curriculum." And school administrators back them up, contact your local union, your state affiliate, we will support you. We are working to fight back against these laws and we are defending educators across the country who are teaching their students in the best way they know how and in line with state standards, and we will defend them when they are subject to the censorship effort.
Natieka (21:01):
LGBTQ educators are in a unique situation when it comes to questions of identity and acknowledging that identity. And there's also book bans that are often targeted at LGBTQ content. What resources are available to LGBTQ+ educators and any other educators who have LGBTQ students and want to be supportive?
Dr. Alice O'Brien (21:27):
So in the guide we have lots of these maps, but there is a map that tracks legislation that targets instruction on LGBTQ topics and identities, like the 'Don't Say Gay' law and the 'Don't Say They' law in Florida. So you can go to that tracker map and figure out what's going on in your state. You can display symbols of inclusion in your classroom, the pride flag. And many school districts have policies that allow such displays. They have school board resolutions that support such displays because they know that they affirm students and students do better in an environment where they are supported and not discriminated against. There are model school board resolutions on the NEA site, which you can use if your school board hasn't adopted such a policy to adopt such a policy, in order to protect yourself and other educators who want to display those symbols of inclusion in your classroom.
(22:32):
On pronouns, if your school district and your state doesn't have a policy in place, call students by their personal gender pronouns and name that they ask for, right? That's just a matter of common courtesy and it is very affirming for students to be called by their names. That seems so self-evidently obvious, but clearly it needs to be said. If there is a school policy that prohibits the use of pronouns for a student that don't align with their biological sex, you should contact your local union about how best to proceed. You may be able to challenge the policy as illegal discrimination against LGBTQ students, especially if it is arbitrarily enforced. Only trans students, for example, don't have the right to be called by the names and pronouns they choose, but everyone else does. But you should talk to your local union about that. And members also can simply work around these issues in their classroom. They could call all students by their last name, for example, or come up with other creative ways to affirm all the students in their classroom.
Natieka (23:44):
Are there any legal limitations or restrictions on educators political activities that they should be aware of? What are some of the common myths regarding those limitations?
Dr. Alice O'Brien (23:57):
Well, I think some educators think that they can't be involved in politics at all, that it's somehow prohibited in some way because they're a teacher or an educator. And that absolutely is not true. As a teacher or as an educator at school on duty, you should avoid political activity, right? And you shouldn't use school district resources for political activity. You shouldn't use the school district email system for political activity. And there are often state, and there may be local laws in place too that prohibit using any school district resources for any political activity. But when you're off duty, you have the same rights to participate in politics as everybody else and you should. Your voice as an educator is powerful and persuasive. And when you speak up at the school board meeting, when you speak up in the halls of the state legislature. When they're considering legislation that impacts how you teach and how students will be assessed and how much funding schools will have, your voice is really powerful and it's really important that it be heard.
Natieka (25:08):
So for those who want to get involved or more involved in political advocacy, there are some resources in the report, but can you highlight a few of the top resources that we have available and provide some insights on how educators can really use their power and their voice in their advocacy efforts?
Dr. Alice O'Brien (25:28):
So I've talked a couple of times about model school board resolutions and there are a number of them that are linked to in the report report and also on the NEA site. And these resolutions really are powerful ways of getting a school district on record in support of inclusive practices in a school district for LGBTQ students in support of honesty and education, teaching all of US history and not glossing over the parts that people find too racist or too unpleasant to really discuss in any detail. Model school board resolutions that support Dreamers, that support students' rights to learn regardless of their immigration status and advocacy for those school board resolutions before the school board is classic First Amendment protected activity. And so something that educators should feel very comfortable engaging in and certain that they are protected for doing so.
Natieka (26:33):
After all of this, what advice do you have for educators who might be still hesitant or concerned about making their voice heard in the political arena or advocating in certain ways? How can they navigate any challenges or pushback that they may face? Because I can imagine that sometimes, depending on the community, there can be a lot of pressure or maybe even some intimidation from maybe not even the schools but parents and other community members that prevent them from wanting to take action. How can they navigate those challenges?
Dr. Alice O'Brien (27:10):
So one, I hope the guide is a resource for people. We have lots of examples in the guide of different activism that different educators have engaged in. That we hope it provides useful examples and also potential models for people to follow in terms of how best to organize for advocacy. Do reach out to their colleagues, safer and also feel safer when you're doing something not as one, but as two or three or more. Reach out to your local union about how to advocate together effectively. Because as a group, you can accomplish far more than any one person individually and if need be, reach out to your local union, your state affiliate for legal representation because we have your back. We are defending teachers all across the country who are speaking up and advocating for their students and for schools, and we are committed to continue to do that.
Natieka (28:06):
Hopefully it doesn't come to that in most cases, and most people can use the guide to help them take the best course of action possible. But thank you so much for breaking all of this down for us today, Alice. I think combined with the report, this could be really valuable.
Dr. Alice O'Brien (28:22):
Thanks so much, Natieka. I hope it is helpful and I hope we all get out there and advocate for the schools our students deserve.
Natieka (28:30):
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