Election 2016: What Teachers Can and Cannot Do

09/26/2016 06:19 am ET Updated Sep 27, 2017

A little enforced New York City regulation requires that teachers remain politically neutral when performing official duties. In 2008, Mayor Michael Bloomberg ruled that public school teachers could not wear political buttons in the classroom. The teachers' union challenged the ban but it was upheld by Federal District Court Judge Lewis Kaplan. Kaplan declared it was up to individual school districts to determine whether buttons in the classroom interfered with learning. However, he warned "school officials may not take a sledgehammer to freedom of expression." A similar ban on political buttons in San Diego schools was upheld by California courts in 1996.

Courts have often given unclear guidelines in rulings on a teacher's first amendment rights. However, what is clear is that school districts have flexibility in enforcing their policies - within limits. In 1972, a New York court sided with a teacher who was suspended for wearing an armband protesting against the Vietnam War. The court held that the teacher's actions did not interfere with educational interests. In 2008, courts overturned an attempt by the University of Illinois to stop employees from attending political rallies and from displaying political campaign bumper stickers on campus.

In Pickering v. Board of Education (1968), the United States Supreme Court ruled that school employees have Constitutional protection when they are speaking about issues of a public nature. In that decision the court overturned a school district's decision to fire a teacher for commenting on school expenditures in a letter to a local newspaper.

Last week a foreign language teacher in Smithtown, New York was "administratively reassigned" after she posted on her Facebook page, "This week is Spirit Week at Smithtown HS West. It's easy to spot which students are racist by the Trump gear they're sporting for USA Day." While I do not believe her remarks are appropriate, the teacher did not express her views in her classes and is not accused of making remarks at school. As of this time there has been no formal disciplinary action by the school district and no court case.

Social media remains a minefield for teachers with no clear guidelines. An article by Michael Simpson, Assistant General Counsel for the National Education Association, documented a series of teacher firings for online posts.

In 2013 the New York City Department of Education (DOE) issued guidelines for "recommended practices for professional social media communication between DOE employees, as well as social media communication between DOE employees and DOE students." Of course, the guidelines were not really recommendations. DOE supervisors were designated as responsible for monitoring and providing feedback on employee use of professional social media sites.

The guidelines also included "recommendations" for "Personal social media use" for "non work-related social media activity." They include:

• DOE employees should not communicate with students who are currently enrolled in DOE schools on personal social media sites.

• DOE employees are encouraged to use appropriate privacy settings to control access to their personal social media sites.

• The posting or disclosure of personally identifiable student information or confidential information via personal social media sites, in violation of Chancellor's Regulations, is prohibited.

• Personal social media use, including off-hours use, has the potential to result in disruption at school and/or the workplace, and can be in violation of DOE policies, Chancellor's Regulations, and law.

The last recommendation is the one that concerns me and should concern the teachers' union. Saying something has the potential to disrupt, even if it does not actually cause a disruption, is an open-ended assertion of authority over a teacher's right to free expression.

To help teachers navigate treacherous waters, in 2015 the American Civil Liberties Union (ACLU) issued an updated version on the free speech rights of teachers developed by its Washington State branch.

According to the ACLU's interpretation of the Constitution and the law, "Generally, the First Amendment protects your speech if you are speaking as a private citizen on a matter of public concern. However, if you are speaking in an official capacity (within the duties of your job), your speech will not have the same protection. What you say or communicate inside the classroom is considered speech on behalf of the school district and therefore will not be entitled to much protection. Certain types of speech outside the school might also not be protected if the school can show that your speech created a substantial adverse impact on school functioning." They warn if as a teacher "You post a 'joke' on Facebook about your students being lazy" it is not protected speech even though you are making it in your private capacity.

In addition, "School districts have the authority to control course content and teaching methods. You are generally considered to speak for the school district when you are in your classroom. Therefore, your speech in the classroom does not have much First Amendment protection. This can be a murky area, however. Some courts have ruled that schools cannot discipline teachers for sharing words or concepts that are controversial as long as the school has no legitimate interest in restricting that speech and the speech is related to the curriculum. In general, you should exercise caution so as not to give the appearance that you are advocating a particular religious or political view in the classroom." The same goes for classroom displays.

While "The Supreme Court has ruled that students can wear armbands to school as an expression of their political views and that their right to free speech can only be limited if the speech would cause "substantial and material disruption" . . . The right of teachers to express their views in school on public matters is not so clear . . . Courts have also upheld discipline for teachers wearing T-shirts with political messages or slogans."

The ACLU warns that if school officials can show political expression outside the classroom "could adversely affect school functions or your effectiveness as a teacher, the First Amendment may not protect you." They offer similar advice for the use of social media, an area where "law is continuing to evolve." According to the ACLU, "if you use social media in your private capacity to express your beliefs on a matter of public concern, you may be protected. However, if you use social media to comment about students, school or other work-related matters, or you use it to engage in what might be considered conduct impairing your functioning as a teacher, the First Amendment may not protect you." None of the examples they offer of "conduct impairing your functioning as a teacher" are similar to what happened in Smithtown.

Education "experts" hedge a bit when discussing whether a teacher has the right to express their views during classroom discussions. In an interview with National Public Radio, Diana Hess, co-author of The Political Classroom: Evidence and Ethics in Democratic Education, reported that their study showed "teachers who were doing an excellent job who shared their own views with students, and there were teachers doing an excellent job who didn't share their views." She and her co-author Paula McAvoy concluded "there are times when it's probably better for teachers to share than other times when it's better for them not to share. That depends in large part on the context -- on who's in their class and what their goals are." However, they also argued the "feeling that the public seems to have that teachers by definition are trying to push their political views on students is just false."

In the fall 2016 issue of Teaching Tolerance, Maureen Costello, the publication's director, argues that in discussions on the current Presidential election campaign teachers should focus on promoting basic American values including that "Truth is essential to the 'American Way.'" In the classroom, this would include a heavy component of fact-checking statements made by candidates who should at least be held to the same evidentiary standards as students.

I like Costello's ideas. This weekend, The New York Times posted "A Week of Whoppers from Donald Trump" Between September 15 and 21 they documented 31 "whoppers," "falsehoods, exaggerations and outright lies." According to the article, "virtually all of Mr. Trump's falsehoods directly bolstered a powerful and self-aggrandizing narrative depicting him as a heroic savior for a nation menaced from every direction. Mike Murphy, a Republican strategist, described the practice as creating 'an unreality bubble that he surrounds himself with.'"

Students should fact-check statements by both Hillary Clinton and Donald Trump at the Presidential debates. Politifact, FactCheck, and the Washington Post's Fact Checker are also useful sources. If one candidate comes across poorly when students fact-check their statements, that is the candidate's problem, not ours as social studies teachers.

According to the National Council for the Social Studies, "The primary purpose of Social Studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world." In New York State, students in all grades K-12 are expected to demonstrate "the basic civic values of American constitutional democracy; and the roles, rights, and responsibilities of citizenship, including avenues of participation." Despite all the cautionary warnings, teachers would be professionally irresponsible not to involve students in political dialogues.

My advice to social studies teachers is that it is legitimate and legal to state your views on a political issue or candidate as part of classroom dialogue when you teach students responsible citizenship. This is especially important when it helps to open up discussion, model respectful commentary, and illustrate the use of evidence to support a point of view. If in doubt, check with you supervisor and union representative about local ordinances you need to consider. Find out what is recommended and what is mandated. And please don't write about your students on Facebook.

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From Amazon: Drumpf for President: A Scary Fable by R. Pieces in Kindle and Paperback.