Fall has finally arrived. That means you can pull your flannels from the back of the closet, and it means Taylor Swift's “Encore” to The Life of a Showgirl now fills the airwaves. (Editor’s note: or not. Have you actually listened to this clunker?) Unfortunately, we all know what else fills the airwaves this time of year: election ads. As those ads rain down across the state, they tend to spark the same evergreen questions at the local district level about what employees can and can’t do during election season.
Those questions start with the First Amendment, and the cases we yap about during in-services, Pickering v. Board of Education and Garcetti v. Ceballos, carry extra weight this time of year. The First Amendment generally protects employees who speak as private citizens on matters of public concern, like senate candidates or ballot questions, on their own time and away from their job duties. When employees speak as part of their official duties or use district time or resources, the district can direct or restrict that speech. Even protected speech has limits. When private speech causes issues at school, courts weigh an employee’s interest in speaking against the district's interest in smooth operations. If the speech seriously damages working relationships or undercuts the employee’s effectiveness, the district's interests can win out, even for off-duty speech. That balancing test makes this a tricky area (see the recent news of teachers winning cases against their former employers after posting about Charlie Kirk), so resist the urge to react quickly and be sure to loop in legal counsel before taking any action.
The Nebraska Political Accountability and Disclosure Act (“PADA”) also plays a major role this time of year. Under PADA, employees can’t use public resources like district email, computers, phones, vehicles, paper, or staff time to campaign for or against a candidate or ballot question, and they can’t campaign on work time. That includes posting from a school-affiliated social media account or using a district device to share political content. On their own time and dime, though, employees can share how they plan to vote, urge others to do the same, or speak to a local civic group. In short, PADA doesn’t silence anyone. It just keeps campaigning off the district’s clock and out of the district's supply closet.
To help your district gear up for the season, KSB policy subscribers can log on to the portal and download a one-page guide that outlines the do’s and don’ts for employees during election season, covering the First Amendment, PADA, Rule 27, and policy considerations. The one-page guide will be located under Policy Updates. If you don’t subscribe to our policy service and want to purchase the guide, reach out to us at ksb@ksbschoollaw.com.
Like any good Taylor Swift era, election season eventually ends. The flannels will stay in rotation, the “Encore” will stay on repeat, and the campaign ads will finally fade from the airwaves. In the meantime, we’re here to help your district navigate the questions that come up. Shoot us an email at ksb@ksbschoollaw.com with any questions.