Texas teachers don’t give up their First Amendment rights when they step into a classroom or when they speak outside of it, but protections are limited when what is expressed is considered disruptive, legal experts say.
The Texas Education Agency’s decision to investigate educators accused of praising or excusing the assassination of conservative activist Charlie Kirk puts free speech protections to the test. It has educators uncertain about what they can safely say off the job — a question Fort Worth ISD wrestled with in 2019 when a teacher was fired over anti-immigrant posts, highlighting the murky boundaries of educators’ First Amendment rights.
As of Oct. 1, TEA has received 351 complaints tied to social media posts from public school employees across the state. Spokesperson Jake Kobersky said that number does not represent separate individuals and includes certified educators as well as other school staff. Each complaint is being reviewed and investigated, he said.
Teachers are seeking advice on how to navigate the current landscape when screenshots and secretly recorded videos are reported to officials. The Texas Classroom Teachers Association has been inundated with calls from teachers since the TEA’s announcement, said Julie Leahy, the group’s director of legal services.
“We have a lot of members who are really concerned that they can’t freely express their opinions … because they’re afraid somebody’s going to take issue with it and they’re going to get in trouble,” she said.
Officials from some local districts — including Northwest, Hurst-Euless-Bedford and Eagle Mountain-Saginaw — say no employees are being investigated or have been put on leave. Castleberry ISD officials declined to release any information, citing confidentiality.
Representatives of Fort Worth, Arlington, Keller, Aledo, Crowley, Everman, Burleson, Lake Worth and White Settlement schools did not respond to Fort Worth Report’s inquiries.
Texas Education Commissioner Mike Morath defended the investigations in a Sept. 12 letter to superintendents, stressing that social media posts about Kirk’s death could violate the state’s educator code of ethics and must be reviewed.
“The exercise of free speech … does not give carte blanche authority to celebrate or sow violence against those that share differing beliefs and perspectives,” Morath wrote.
Educators under review could have their state teaching certificates suspended and become ineligible to work in Texas public schools, he said.
The Foundation for Individual Rights and Expression, a national free speech advocacy group, argued social media posts fall squarely within constitutional protections.
“In some cases, the targeted speech was a criticism of Kirk and his views. In others, it was a celebration of his fate,” the group said in an editorial published by USA Today. “In all cases, however, it has been First Amendment-protected speech — and far from violence.”
At the heart of the issue is a decades-old balancing test from the U.S. Supreme Court. Public employees have the right to speak on matters of public concern. However, their speech can be restricted if it causes significant disruption to their employer’s operations.
That means teachers’ off-duty speech is often judged by community reaction, experts said.
“If their speech is sufficiently disruptive, including because it is just sufficiently unpopular, then they could be fired,” said Eugene Volokh, senior fellow at the Hoover Institution at Stanford University and a member of The Federalist Society, a national network of conservative and libertarian lawyers.
That tension between free expression and disruption is where district action generally comes in, Leahy said.
“It is highly unusual for TEA to basically invite complaints, especially on a matter related to speech,” Leahy said.
Agency officials typically focus on educator misconduct such as drug use or inappropriate relationships with students, things everyone agrees warrant removing a teacher from the classroom, she said.
Local administrators often justify disciplining a teacher when parents demand their children be removed from a class or when protests disrupt school operations, Leahy said. The result is generally uneven — some teachers face suspension or termination, while others receive lesser sanctions, she said.
Fort Worth ISD grappled with a First Amendment issue nearly six years ago, when longtime teacher Georgia Clark was fired after tweeting to President Donald Trump during his first term that her high school was “taken over by illegal students” and urging him to intervene. Trustees unanimously voted to terminate her employment, citing the impact on the school’s students, who were mostly Hispanic, and the campus community.
Clark challenged the decision. A TEA hearing examiner later ruled the tweets were constitutionally protected. However, in March 2021, the 250th District Court in Travis County upheld the board’s action.
The case underscored how unsettled the balance can be. Courts and agencies have disagreed on whether controversial speech crosses the line, often hinging on how much disruption results, experts said.
Beyond legal standards, Volokh said a real concern is trust: If students see their teacher posting attacks on immigrants, for example, they may doubt that teacher’s ability to treat them fairly. The same applies in reverse, he added — a conservative student might question whether a teacher who praised Kirk’s death could respect their views in the classroom.
The uncertainty creates incentives for organized outrage campaigns, Volokh said.
“If people want to get a teacher fired, they realize they need to organize this kind of campaign of protest,” he said.
Leahy’s advice: engage in respectful, civil dialogue to minimize the risk of disruption. Still, she emphasized that teachers remain citizens with a right to voice opinions on community issues as long as they protect student confidentiality and remain professional.
Due process is critical, Leahy said. Teachers who are accused are entitled to present their defenses and have them considered in an unbiased way, she said.
“Teachers should feel free to express their opinions,” Leahy said. “As long as you have this fear that you can’t express yourself without it getting you into trouble, there’s going to be people who choose not to place themselves in that position.”
Matthew Sgroi is an education reporter for the Fort Worth Report. Contact him at matthew.sgroi@fortworthreport.org or @matthewsgroi1.
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