Free Speech Boundaries
UEA General Counsel Tracey M. Watson delves into the contrast between the free speech rights of Utah State School Board members and licensed educators.
Why Can a Utah State School Board Member Express Public Statements That Might Lead to My Termination?
Many of you have asked why a Utah State School Board member can openly express opinions that could land public school educators in hot water. The simple explanation is that USBE members are elected officials, while Utah Education Association (UEA) members are licensed public educators and public employees. In Utah, licensed public educators are bound by the standards laid out in R277-217 (you can find it here: schools.utah.gov/file/5a431cd9-51c7-4ccb-af1d-889b1204935f). Additionally, K-12 public employees have limited Free Speech Rights when acting in their official capacities.
Is This Fair? Probably Not. Is It Legal? Most Likely.
While this might not seem fair, legally speaking, USBE members are within their rights. This situation is reminiscent of the 1971 case of Cohen v. California (403 U.S. 15). The U.S. Supreme Court ruled that the First Amendment allows certain offensive language to convey political messages. This decision stemmed from Paul Cohen, a 19-year-old California department store employee who protested the Vietnam War by wearing a jacket emblazoned with “%^&* THE DRAFT. STOP THE WAR” (edited for publication). He was charged under a California statute, found guilty, and sentenced to 30 days in jail. However, in a 5-4 decision, the Supreme Court upheld Cohen’s right to Freedom of Expression. Importantly, the Court noted that while the message was provocative, it wasn’t targeted at any individual, and there was no proof that it would incite physical action. The Court’s insight that “one man’s vulgarity is another’s lyric” underscored how language can be interpreted differently (visit oyez.org for more). It’s worth noting that Paul Cohen wasn’t a licensed public educator. The recent USBE incident involved spoken words rather than jacket text, but the same legal principles apply.
The First Amendment, a cornerstone of the United States, ensures the right to free speech, even when opinions differ. During my time in law school, my Constitutional Law professor taught me that the First Amendment is most beautiful when it is ugliest to defend.
Striking a Balance: Navigating Divisive Speech in Education
Considering these factors, is it wise to engage in divisive speech that could discourage well-meaning educators beginning a new school year? Personally, I don’t think so. However, the final call might depend on what constituents—those who elect public officials—expect. When an elected official expresses views that clash with your own, especially on public matters, you have the right as a citizen to voice your disagreement. But remember, this right can’t be exercised while representing your school district. If you need guidance on communicating with elected officials within the boundaries of what you can and cannot say, contact your local UniServ office.
In the meantime, the NEA (National Education Association) offers a publication that sheds light on the limitations surrounding educators’ freedom of speech rights when they’re acting as public employees. Find more insights here: nea.org/resource-library/first-amendment-protections-educators.
