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It is well settled that a public school cannot punish a teacher for speaking out as a private citizen on school issues. Yet a federal court in Oregon said the opposite and ruled that school officials were protected by qualified immunity for doing so.

In Oregon, an assistant principal and teacher were fired for their political speech after drafting and publicizing a model gender identity policy for schools (that was at odds with their own school’s policy). When they sued, a federal district court dismissed the lawsuit, ruling that the teacher’s First Amendment right to freedom of speech was outweighed by the school’s interest in “protecting the safety and wellbeing of its students.” The court reached this conclusion despite disputed evidence over whether there were more than a handful of boilerplate student complaints. Worse, the court held that even if the school did violate the First Amendment, school officials were shielded from liability by qualified immunity.

On September 13, 2023, FIREfiled an amicus brief in support of the fired employees with the United States Court of Appeals for the Ninth Circuit. As the brief explains, under the seminal Supreme Court decision on public employee speech, a K-12 school’s administrative interest in school order does not outweigh a teacher’s First Amendment right to political speech as a private citizen unless the speech seriously disrupts the classroom environment. That’s not this case. And because school officials had “fair warning” that firing their employees violated the First Amendment, they should not be protected by qualified immunity.