"Free speech" may sound like a broad right — and in many circumstances it is. But, Free Speech does have a narrow application to public employees speaking in their capacity as public employees according to their job duties. 

In other words, when the speech can be tied to the employee's obligations as a public employee, that speech may not be protected by the First Amendment. In these cases, a teacher can be viewed as speaking as a school representative. This means it's not the employee as an individual but the school doing the speaking, and the school gets to control its own speech. 

When you take your teacher hat off and speak as a citizen, you have much broader free speech rights, but they are not unlimited. 

You might picture a spectrum of speech with speech purely on matters of public concern at one end and speech purely on issues of personal concern at the other. When determining if something you say can lead to discipline by the school district, we need to ask ourselves three fundamental questions: 

1. Am I speaking on a personal matter or a matter of public concern?
2. Can the speech be tied at all to my job as a teacher? Can I be seen as speaking on behalf of my employer? 
3. Can the speech be viewed as disruptive to the operations of the school? 

Example speech: "I don't like the custodian in my school. They never pick up the trash in my room, so I have to do it myself. I should get two salaries, theirs and mine!"

In this case, the district might still discipline you even though you are airing a personal grievance because it crosses into the line of expressing a view about the function of the school as an employee of the school. 

Example speech: "The school board just voted to sell all the school buses to the demolition derby and hire Über cars to transport the students instead." 

Assuming this is a factual statement, You are much more protected, but not entirely so, when talking about matters of public concern. The school might still discipline a teacher for speaking on a matter of public concern if the speech is too disruptive or potentially disruptive to the efficient operations of the school. 

This is usually determined on a case-by-case basis, considering all the competing interests of the parties involved. The interests of the general public, the teacher and the school are all balanced against each other. It may not be protected speech if the school's interests outweigh the others. Even speech on a matter of much greater concern to the public than to the teacher personally may still not be protected if it would be deemed too disruptive to the district.

The notion of "academic freedom" creates some freedom of speech for teachers within the classroom context. It applies to creative freedom to maneuver how you teach within the bounds of the established curriculum and school district policies for your grade level and subject area.

Yes, you can and you must.

The State Education Department issued guidance in 2015 about pronouns. See NYS Education Department, Guidance to School Districts for Creating Safe and Supportive Environment for Transgender and Gender Nonconforming Students (July 2015).

Generally, a student's preferred pronoun should be respected if they self-identify. The policy was adopted as part of the implementation of the Dignity for All Students Act ("DASA"). One of DASA's primary goals is to protect students from bullying, harassment, and threats. Students might not feel comfortable disclosing their pronouns at school, or even to their parents.

Another policy goal of DASA is to respect a student's need for confidentiality. With this in mind, the policy does not necessarily want teachers to force students to identify their pronouns, but at least in the higher grade levels, students may be encouraged to use their pronouns if they choose.

Please keep in mind that guidance is just that: guidance. It does not have the force and effect of law, so you should ensure you are familiar with and comply with all board of education policies on the issue for your district.

With certain exceptions for the study of health and hygiene as it conflicts with religious beliefs, parents generally do not have the right to opt out of or veto parts of the established curriculum they do not like. Curriculum decisions are made at the state and district levels, and parents or students cannot compel teachers not to teach approved curricula.

Any parental demands that you do not teach something that falls under established curriculum and school board policies should be immediately addressed with your principal or other appropriate administrator and be brought to the attention of your local union.

Assuming you were speaking within the established curriculum and in compliance with board policies, you should be protected by the tenure laws. But, ultimately, the answer is going to depend on the facts of the situation.

Probationary teachers without tenure need to proceed with more caution.
But, even probationary teachers may have protection under the Constitution, labor and employment laws, nondiscrimination laws, and perhaps under the collective bargaining agreement.

Regardless of tenure status, if you feel your job is under threat, you should consult immediately with your local union.

In New York, at least, it is unlikely that a parent or student would have a cause of action against a teacher based on what they said in the classroom.

In any event, for public school employees, if an employee is sued for something they said or did within the scope of their job duties, the school district may have a responsibility to defend and indemnify them. But, in order for this to apply, the employee must make a timely demand (within five calendar days) and serve the demand on the board of education, not an administrator or other person.

Suppose you should find yourself in a situation where a parent is bringing a legal action against you. In that case, you should first contact your local union leadership and your district's administration.

No. Assuming the rally was otherwise related to a matter of public concern, such as advocating an issue or expressly advocating the election or defeat of a candidate, it would be protected by the First Amendment.

If the rally were related to the collective bargaining relationship (a union rally), it would be protected by the Taylor Law or NLRA.

Ultimately, it would depend on the particular facts. However, provided you did not engage in illegal activity (disorderly conduct, resisting arrest, trespass, etc.), activities like attending a rally, carrying a sign or a flag at the rally, wearing apparel or buttons at the rally, or addressing the crowd or passersby, all generally should be protected.

You may feel you are protected on social media because you have a personal account and speak your mind on many other topics. You are not. Where your speech appears is mainly irrelevant. Whether you are speaking in person at a school board meeting or posting something on social media, all speech is all subject to the same criteria.

Any content you post on social media, whether text or visual, is speech. Therefore, it is regulated and considered like all other speech in terms of the employer-employee relationship and the First Amendment. The same issues and set of evaluations apply to speech on social media as any other forum, so please refer to our overarching Free Speech section for details on this.

Yes. The district could seek to discipline you if you refuse to comply with its policies. Where we disagree with district policies, we can seek to change them through the political and, perhaps, legal processes. This is one reason elections are so important, up and down the ballot, from Governor to school board members.

If you believe the district is doing something illegal or discriminatory, you should bring it to the attention of your local union rather than taking it on alone. The union will have greater resources to address the matter, both legally and politically, and it will further protect you from discrimination or retaliation from the employer.

Beyond that, the various antidiscrimination laws protect employees who complain of discrimination from employer retaliation. So, if you report alleged discrimination to an appropriate federal or state agency, such as the Office of Civil Rights, EEOC, or State Division of Human Rights you should be protected from retaliation under the antidiscrimination laws and New York's whistleblower law.

Yes. Testimony given under oath and pursuant to a subpoena is generally protected under the First Amendment. Further, testimony at a PERB or NLRB hearing or in an arbitration under the collective bargaining agreement may be protected by the Taylor Law or the NLRA. Of course, the person testifying should answer the questions unless a privilege is claimed (a lawyer can advise on this) and answer truthfully.

Yes. Generally, speech in the context of concerted labor activity is protected in the public sector by the Taylor Law and in the private sector by the NLRA.

However, note that such speech could lose its protection depending on how it is delivered. (Need more here, Lena.)

And we caution against addressing such grievances directly with students or parents in the classroom since they generally are outside the labor relations context.

No doubt about it; this is confusing!

For decades before June 2022, a school district would have been within its rights to prohibit a football coach from praying on the football field after games thanks to the Establishment Clause of the Consitution, which generally prohibits the government from endorsing a religion.

(The language of the First Amendment and the Establishment Clause has stayed the same for over 200 years. All that changed was the composition of the Court. This is another reason why elections are so important and why we need to get out the vote!)

The short answer here is that the new majority on the Court found that religious speech is protected not only by the First Amendment but also by the Free Exercise Clause. According to the Court, it is doubly protected by these two Clauses, making it very different from other kinds of speech. The Court has carved out a very narrow exception for school employees to pray during the workday when their job description allows them to engage in other secular personal activities, such as making a call, checking messages, talking with friends, etc.

We don't know exactly how this change in long-established law and practice will play out in our schools, but we will be monitoring and fighting on behalf of educators' rights.

Educators who speak up for their students and colleagues may be subjected to threatening or harassing behavior from parents, students, and community members. This harassment may be in the form of verbal threats, written threats or online harassment. 

Again, social media is just like any other forum for public speech. Others can see and interpret what you say in ways you do not intend. In addition, people who disagree with you may issue retorts or condemnations of your speech. Much of this reaction to your speech will itself be protected speech. However, this can spill over into non-protected forms of speech, such as harassment and threats. 

There are simple measures you can take on most social media and digital platforms to help minimize this: For example, check the privacy settings on all of your social media accounts. Limit public posts and confirm that your social media posts are only viewable by your intended audience. If you ever had a public social media presence, you may wish to review old posts and delete any that may be viewed as controversial. Additionally, if you plan to speak out publicly on an issue that could be controversial, it may be helpful to notify school officials and your local union, in advance.

Additionally, you can report content you find harassing or threatening to the moderators or overseers of the platform in question. Threatening or harassing behavior often violates the terms of service on many platforms and can be reported. You may also be able to block the harasser or mute the comments.

Remember, social media is just like any other communication medium regarding threats and harassment. Just as you would if someone was sending you threatening letters or making harassing phone calls, you should document what you are experiencing. This may include taking screenshots of threatening messages or social media posts and maintaining notes or records of threatening and harassing statements, as this may be helpful evidence in the future. 

Additionally, your local union may be able to assist you in working with your employer to explore solutions. Your local union can also help you review your collective bargaining agreement and school board policies. 

As your employer, the school district may be required to investigate and address this harassment. If the harasser is a student or parent, they may be able to investigate, impose discipline, enforce codes of conduct, or take other steps to protect you.

Finally, depending on the threat level, you may consider reporting the harassment to local law enforcement. But, of course, if you know that the person threatening you is a student, we recommend attempting to resolve the situation through the school before invoking law enforcement.

The PEN America Online Harassment Field Manual provides additional guidance on how to protect yourself online.