By Amber Stockham
With the race for the presidency and contested Senate seats heating up this fall and many sports seasons truncated or cancelled, water cooler conversation in the U.S. will likely center less on pastimes and more on politics. From conversations to clothing, bumper stickers and pins, politically engaged Americans will be showing their support for candidates and parties as well as their policies.
Your faculty and staff are likely to participate in this show of patriotism, but with the United States becoming more polarized, these conversations can easily become fraught with tense, hurtful language and spin out of control on your campus. It’s wise to plan ahead and ensure that your school has legal, commonsense policies in place which are congruent with your school’s culture and are uniformly enforced.
Americans are quick to cite the U.S. Constitution’s First Amendment right to free speech, but many are unfamiliar with the actual language of the amendment or its limitations. The First Amendment provides guidelines to Congress about the limitations of the federal government’s power to make laws curtailing rights, but it does not apply to private employers like independent schools. In your school, you have the right to limit your employees’ speech as long as the school’s actions do not violate any other laws.
Many schools have policies that require employees to refrain from using language which is hostile, threatening or disrespectful. Few specify political speech in their policies, and even fewer ban political speech on campus. Grace Lee, NBOA legal counsel and partner at Venable LLP, says it is best to view political conversations as professional conduct and to set some ground rules. “Schools have a lot of discretion to restrict political speech at work,” she noted, adding that schools need to know their local and state laws.
While the federal rule does not extend to private schools, many jurisdictions have provided some degree of protection for political speech in the private workplace. Some states prohibit discrimination based upon political party membership while others protect engaging in political activities or attending political events, engaging in election-related speech or engaging in any off-duty lawful activity.
Whatever their policies, schools need to ensure they are not so broad that they infringe upon other rights enjoyed by employees.
A Delicate Balance
Whatever their policies, schools need to ensure they are not so broad that they infringe upon other rights enjoyed by employees. For instance, even schools that do not have organized labor on campus should be aware that employees have a right under the National Labor Relations Act (NLRA) to participate in concerted activity, including discussing concerns about wages and hours as well as working conditions. Schools cannot infringe upon these rights, so while the school can say that language on campus must be civil and respectful, the school cannot broadly prohibit employees from making negative comments about supervisors or the school, because this could prohibit employees from discussing the need for changes to compensation practices or safety procedures with their peers. Schools that wish to bar political conversations should also note that some candidate platforms contain labor relations elements such as an increased minimum wage and discussing these platforms may constitute protected speech.
This caution should also be applied to social media policies. Many schools have policies that require employees to refrain from contact with students on social media, but others have expanded their policies to mitigate the risk of potentially damaging statements that employees may make on their public social media accounts. In many states, schools can place some limits on the social media statements made by employees who are publicly identified as employees of the school, according to Lee. These policies may include language that refers to personal conduct on social media that is contrary to a school’s code of professionalism and reflects negatively on school. However, schools should be wary of overly broad enforcement of these policies.
Drawing the Line
When enforcing any conduct policies related to statements made on campus or on social media, consider to whom the statement was directed as well as the purpose and contents of the statement. For example, in 2017, a software engineer at Google posted a criticism of Google’s diversity policies on the company’s intranet. In the 3,300-word document that was posted for coworkers, he expressed frustration with policies that he saw as discriminatory and ultimately harmful to both the company and its employees, speech that is likely protected under the NLRA. However, he also made reference to numerous negative stereotypes of women, including arguing that women are biologically unsuited to tech work. Google terminated the engineer for making these statements, saying, "To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK." This decision was upheld by the National Labor Relations Board on the grounds that the company terminated the employee not because he spoke out against the company’s practices, but because he made discriminatory statements to and about his coworkers.
Schools cannot dictate an employee’s beliefs, but they can provide clear policies which prohibit derogatory and defamatory statements in the workplace as well as threats and harassment.
Employees have a right to a workplace which is free of discrimination based upon their membership in a protected class. While protected classes vary from state to state, at the federal level they include sex, race, age, disability, color, creed, national origin, religion or genetic information. In a highly partisan environment, religion and politics are occasionally mingled. Unfortunately, these protections also occasionally collide in the workplace when an employee expresses a religious belief which is viewed by a peer as derogatory or discriminatory against a protected group. In order to protect both the employee’s religious belief and the peer’s right to a workplace which is free of discrimination, it is important to have clear policies about both language and conduct in the workplace. Schools cannot dictate an employee’s beliefs, but they can provide clear policies which prohibit derogatory and defamatory statements in the workplace as well as threats and harassment.
Ultimately, schools have a right to create a welcoming environment for students and personnel and to foster discourse that is in line with their educational mission. This means that schools can ask employees not to wear politically-charged attire to work and not to engage in discussions which are offensive, disparaging or divisive in nature. Most importantly, schools should be realistic when drafting policies and should acknowledge situations which may arise naturally on campus — such as civics classes discussing current political issues — in order to ensure policies are uniformly enforceable. When confronted with a situation involving inappropriate conversations on campus, “schools should be able to refer to their policies for guidance when making a decision,” advised Lee.
Once appropriate, effective policies are in place, ensure supervisors enforce policies for all employees among all political groups, and ensure supervisors do not single out those with whom they do not agree. Consistency and careful consideration of individual incidents will allow the school to weather the upcoming political season without irreparably damaging foundational community relationships.