KBS Reference Desk: Political Dress

Q:        We recently received a complaint about a teacher wearing a Trump/Pence t-shirt during virtual instruction. Our dress code prohibits all clothing with a political message—the teacher claims we are violating her right to free speech. Can our district regulate the employee’s political clothing?

A:        Likely yes, but there are two issues to consider. 1) First Amendment implications and 2) state prohibition against political advertising and electioneering utilizing public funds.

First Amendment.  As noted by the Supreme Court, while school district employees do not lose their First Amendment Rights “at the schoolhouse gate,” this protection is not limitless, and employers may exercise a considerable degree of control over employees’ work-related communications and expression. As such, in this case, the district’s dress code regulation banning all clothing/garments bearing a political message is enforceable, as it is viewpoint-neutral and relates directly to employee’s work-related expression.  As in the hypothetical above, it is recommended that a district’s employee handbook contain a provision prohibiting clothing with non-school messages. Without such language, the district will be required to apply a First Amendment analysis to each scenario in order to determine whether the teacher’s “speech” is protected. If faced with this analysis, the key factors include whether the employee’s speech involves a matter of public concern, the school’s interest in regulating the speech, and the application of the district’s regulations, if any, in a reasonable, viewpoint-neutral manner.

Political Advertising/Electioneering. Use of employee equipment, such as a computer, by a teacher during instructional time to convey a political message likely violates state law prohibitions against political advertising and electioneering through the use of public funds. Both the Texas Education Code and the Texas Election Code forbid electioneering and political advertising through the use of state funds. See Tex. Educ. Code § 11.169; Tex. Elec. Code § 255.003. The Texas Ethics Commission broadly interprets “public funds” to include use of school employee time and use of school equipment such as computers. Thus, use of a district computer to convey a political message through the teacher’s clothing during instructional time may constitute an impermissible use of public funds for electioneering and/or political advertising.

The state law prohibiting political advertising factors into the First Amendment analysis as well. For instance, if a school district did not have a dress code that prohibited the clothing, when analyzing the school’s interest in regulating the political speech—compliance with state law weighs heavily in favor of the district’s interest in ensuring compliance with the Education and Election Codes. This would be true whether a computer and distance learning was in play or not.

In light of the Supreme Court’s analysis of the First Amendment and state election laws, employees who wish to engage in political advocacy should do so on their own time and without using district equipment, time or resources. Wearing a political t-shirt or button supporting or opposing a specific candidate or measure while on duty, including while providing virtual instruction, is most likely in violation of state law concerning political speech at work, and not protected speech for purposes of the First Amendment.

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