As the 2024 presidential election cycle is in full swing, schools should prepare for debate, discussion, and expression of a wide range of political views and beliefs. While political discourse can be a valuable tool in the classroom, these conversations can become tense and easily spin out of control due to the increasingly polarized nature of U.S. politics. Independent school employees are often engaged in the political process and inspire students to think deeply about political and cultural issues, however, schools should be mindful that there are limits to the type of expression and support that employees should display for specific candidates or issues in the workplace.
Independent schools, as 501(c)(3) nonprofit entities, are prohibited from engaging in partisan political activity, either directly or indirectly. Accordingly, employees who purport to speak on behalf of the school may jeopardize the school's 501(c)(3) status if they advocate for or against a particular candidate for elected office or use school resources to do so.
For these reasons, independent schools would be wise to ensure that there are policies in place for the 2024-2025 school year to ensure that political activity on campus is conducted in a respectful manner, while balancing employees' rights.
Employees' Rights
First Amendment Rights
Many employees believe that their First Amendment right to free speech would undercut a school's ability to implement a policy regulating political activity and speech on campus. It is important to note that the First Amendment only applies to government action to restrict free speech; it does not apply to private actors, such as independent schools. Therefore, independent schools, unlike public schools, are free to impose policies regulating political speech, activity, and expression, so long as those policies do not violate any other laws, including state and local laws prohibiting discrimination based on an individual's protected characteristics, such as race, color, national origin, religion, sex, sexual orientation/gender identity, or disability. Notably, several jurisdictions, including the District of Columbia, have also enacted laws prohibiting discrimination against individuals based on political affiliation.
Section 7 of the National Labor Relations Act
Section 7 of the National Labor Relations Act (NLRA) protects employees who engage in concerted activity for the purpose of mutual aid or protections, and therefore restricts an independent school's right to limit employees' discussion of wages, hours, or other terms and conditions of employment. For employee activity to be protected, there must be at least two employees involved, and the subject of the activity must relate to employees' working conditions. Employee activity that would not, on its own, meet this standard may nonetheless be found to violate Section 7 of the NLRA if it is deemed to be a "logical outgrowth" of related and protected, concerted activity.
Political speech or activity did not, historically, implicate Section 7 of the NLRA because it did not concern an employee's terms and conditions of employment. Recently, however, the National Labor Relations Board (NLRB) expanded the definition of 'protected, concerted activity" to apply to political speech and participation in social movements in certain situations. In that case, the NLRB examined whether an employee's dress code, which prohibited an employee from displaying a BLM insignia on his work-issued apron, violated the employee's rights under Section 7 of the NLRA. The employee wrote the letters "BLM," standing for "Black Lives Matter," on his work-issued apron in the wake of George Floyd's death. Around the same time, the same employee made a report to management regarding another employee who was making racist remarks in the workplace. Management met with the employee to discuss his co-worker's inappropriate workplace behavior, and during that meeting, the managers informed the employee that he would not be permitted to come to work with BLM written on his apron moving forward, as their dress code prohibited the display of "religious beliefs, causes, or political messages unrelated to workplace matters."
The NLRB, rejecting the administrative law judge's initial determination that the employee's BLM marking was unprotected because it was related to a social movement and not to his working conditions, concluded that the employee's refusal to remove the BLM marking was the relevant act, and was related to his meeting with management to discuss his workplace complaint. Based on this analysis, the employee's actions were deemed a "logical outgrowth" of his workplace complaints, even though the employee's decision to write BLM on his apron was an individual action and was not a direct result of his workplace complaint.
While this decision does not prohibit employers from implementing policies like the one in this case, it represents a clear expansion of the types of employee conduct and behavior that may be protected under Section 7 the NLRA. Therefore, independent schools with policies governing employee expression regarding seemingly non-work-related topics, such as religious, political, and cultural issues or causes, must carefully consider whether a nexus may exist between an employee's political expression and their working conditions or other issues they may have raised.
Schools should also be aware that any handbook policies addressing political speech in the workplace may be subject to increased scrutiny following the NLRB's Stericycle decision in 2023, which significantly lowered the standard for finding that an employee policy violates the NLRA because it could be reasonably interpreted to interfere with an employee's Section 7 rights. The Stericycle decision calls into question all types of common workplace policies, including social media policies, and could potentially apply to political activity policies as well. As such, schools should ensure that any policy governing political speech clearly describes the school's business justification for restricting political expression on campus. Schools should also take care to enforce any such policy carefully, taking into consideration the facts and circumstances of each situation, to ensure that they are not infringing on employees' legal rights.
Political Activity Policy Considerations
As discussed above, independent schools' political activity policies should clearly describe the school's justification for limiting political speech on campus to ensure that it will not be deemed unlawful pursuant to the NLRB's recently updated standard for employee conduct policies. This could include the school's need to create a welcoming environment for students, faculty, and staff, and to encourage discourse that is in line with their educational mission.
Independent schools may consider including language in their employee handbooks that sets clear expectations for employees to maintain appropriate professional boundaries in their interactions with colleagues and to remind employees not to let their personal views create disruption at the school. In a similar vein, faculty should be reminded of their role as educators and that they should endeavor not to impose their own political and social views on students. When crafting their policies, schools should consider how they want their educators to address political issues with students, both in and outside of class, as well as how they intend to address interactions between employees regarding political issues.
Furthermore, political activity policies should set clear ground rules regarding what will be considered acceptable and unacceptable conduct on campus. Clearly, any illegal activity should be prohibited, but also conduct that has a negative impact on the reputation of the school or is inconsistent with the school's values. Similarly, employees should be prohibited from using school resources, including financial resources, supplies, or employees' own working time, to participate in any personal political, social, or cultural activities or movements.
Schools should also consider whether they will prohibit employees from displaying campaign paraphernalia, such as hats, banners, or bumper stickers, in their classrooms or workspaces, as these items may create an uncomfortable working and educational environment for others who do not share the same beliefs or political affiliations as the employee displaying the item(s). That said, schools that choose to ban or restrict such items should ensure that such a policy is applied consistently to prevent complaints that an employee who is asked to remove political paraphernalia from their workspace is not being targeted due to their specific political affiliation, religious or cultural beliefs, or any other reason that could implicate federal or state anti-discrimination laws. For this reason, some schools have chosen to adopt a policy that bans large flags and banners of any type in classrooms, including ones promoting sports teams, bands, or other interests, to ensure that their policy is applied uniformly.
Schools with questions about the issues addressed in this client alert or that require assistance in preparing to address political speech and activities on campus during the upcoming school year should contact Caryn G. Pass, Grace H. Lee, Janice P. Gregerson, or Ashley E. Sykes.