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 from Sioux Falls to Rapid City, 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 or house 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, and 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.
South Dakota law also plays a major role this time of year. SDCL 12-27-20 prohibits school districts and other political subdivisions from spending, or allowing the spending of, public funds to influence the nomination or election of a candidate, the petitioning of a question onto the ballot, or the passage or defeat of a ballot question. In practice, that means district email, computers, phones, vehicles, paper, school-affiliated social media accounts, and paid staff time can't be used to campaign for or against a candidate or ballot question. The stakes are real: spending $1,000 or more in violation of the statute is a Class 1 misdemeanor, and spending $10,000 or more is a Class 6 felony.
The statute also contains two important safeguards. First, it expressly states that it doesn't limit the free speech of employees speaking in their personal capacity. Second, it allows districts to present factual information solely to educate voters on a ballot question. That exception matters when your district has an opt-out or bond election on the ballot, but the line between informing and advocating can be thin. A fact sheet on what a bond would fund is one thing; a flyer urging patrons to "Vote Yes for Our Kids" is another.
South Dakota's Code of Professional Ethics adds another layer for certified staff. Under ARSD 24:08:03:02, educators must take care to separate their personal views from those of the district. That means a teacher's yard sign is their own business, but a campaign pitch during class or a candidate flyer run off on the school copier could land them in front of the Professional Teachers Practices and Standards Commission. The code also cuts the other way: educators cannot interfere with a colleague's exercise of political and citizenship rights.
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 dos and don'ts for employees during election season, covering the First Amendment, SDCL 12-27-20, the South Dakota Code of Professional Ethics for educators, and policy considerations. 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.
