Tumwater School District Considering Unconstitutional ‘Staff Expression’ Policy
The United States Supreme Court has long held that public employees do not surrender their First Amendment rights at the schoolhouse gate.
In the landmark 1968 case Pickering v. Board of Education, the Court established that teachers have a constitutional right to speak out as private citizens on matters of public concern.
Under the Pickering-Connick balancing test, a school district can only discipline a teacher for off-duty speech if that speech causes a substantial disruption to the educational environment or severely impairs workplace efficiency.
This delicate balance is currently being tested by the Tumwater School District’s newly proposed Policy 5254, titled “Staff Expression.” The policy represents a sweeping administrative attempt to regulate what educators can say, post, and express both inside and outside the classroom.
While Superintendent Kevin Bogatin and the school board champion the policy as a necessary tool to maintain operational harmony, a critical legal review suggests it is a constitutional minefield.
By attempting to aggressively police the off-duty, private speech of its employees, the district risks trampling on the First Amendment and the fiercely protective free speech guarantees of the Washington State Constitution.
The Problem with Policing Off-Duty Speech
According to a March 25 memo authored by Superintendent Bogatin, the policy deliberately includes language to put staff on notice that their off-duty speech may be subject to discipline.
The memo’s rationale is that the surrounding community “might understandably struggle to separate a staff member’s role within the school district...from an employee’s private speech.”
The draft policy explicitly targets social media, warning employees that expression on these platforms that “interferes with the district’s operations or prevents the district from functioning efficiently and effectively may be subject to discipline up to and including termination.”
It also threatens termination for any expression that has an “adverse impact on district operations.”
This logic effectively flips the First Amendment on its head. It punishes the speaker—the teacher—for the audience’s inability to distinguish between an individual’s private opinions and their professional duties.
The Federal Precedent
Tumwater’s proposed policy seemingly ignores the high bar set by the Supreme Court.
By substituting the stringent requirement of “substantial disruption” with vague, easily manipulated phrases like “adverse impact” or “interferes with the district’s operations.” the board lowers the threshold for firing an educator to virtually nothing.
Courts have routinely recognized that heavy-handed retaliation based on an undifferentiated fear of a public relations headache is unconstitutional.
Furthermore, the policy fails to properly integrate the modern realities of the Garcetti v. Ceballos standard. In 2006, the Supreme Court ruled that speech made strictly pursuant to a public employee’s “official duties” is not protected by the First Amendment.
While the Tumwater School District unquestionably has the authority to dictate official curriculum and in-class instruction, Policy 5254 overreaches. It attempts to drag the private lives and personal social media accounts of its staff under the umbrella of professional responsibilities, claiming that staff expression includes “how they present themselves to students.”
Perhaps the most glaring blind spot in the proposed policy is its failure to account for recent, high-profile precedent forged right here in Washington State.
In 2022, the U.S. Supreme Court ruled in Kennedy v. Bremerton School District that Joseph Kennedy, a high school football coach, had a constitutional right to pray on the fifty-yard line immediately following games.
The Court declared that Kennedy was not engaged in government speech during this “brief lull” in his duties, but rather was engaging in protected private speech, even though he was on duty and visible to students.
The Kennedy decision drastically altered the landscape of public employee speech. It firmly established that just because an employee is on the clock and visible to students does not mean their expression can be banned merely to appease offended onlookers or avoid controversy.
Tumwater’s draft policy reads as if Kennedy never happened. By attempting to sanitize the community of any controversial personal expression by district employees, the board is defying a direct mandate from the highest court in the land.
If a Washington public school coach can pray at the center of a football field surrounded by students and spectators, the Tumwater School District will be hard-pressed to legally justify firing a teacher for attending a weekend political rally or posting a controversial opinion on a private Facebook page.
The Ironclad Shield of Article I, Section 5
Beyond the First Amendment, the school board must also answer to the Washington State Constitution. Article I, Section 5 unequivocally states: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.”
The Washington State Supreme Court has historically viewed this provision as providing even broader protections against the prior restraint of speech than its federal counterpart. In Washington, an overbroad policy that sweeps a substantial amount of constitutionally protected conduct within its prohibitions is strictly forbidden.
Policy 5254 is undeniably overbroad. It threatens to chill constitutionally protected conduct by forcing educators to constantly second-guess their personal lives.
Will sharing a news article run afoul of the vaguely defined standard of “functioning efficiently?” Will engaging in a passionate debate on social media result in a termination letter because a community member complained?
While state entities have a legitimate interest in promoting efficiency, Washington law demands they cannot arbitrarily override the free speech interests of their employees without a highly compelling justification. The desire to avoid community confusion simply does not meet that standard.
A Legal Minefield
No one disputes that the Tumwater School District has a difficult job. Administrators must foster an inclusive, focused, and safe environment for minors while navigating an increasingly polarized society.
However, silencing the educators who serve those students through vague threats of termination is not the solution.
The proposed Staff Expression Policy relies on ambiguous standards, ignores binding Supreme Court precedents, and fundamentally disrespects the robust free speech protections woven into the Washington State Constitution.
If the board passes this policy in its current iteration, they will be writing a blank check to civil rights attorneys.
The world's most ignorant and dangerous people are the ones who "laugh" at these reports of the REAL criminals of humanity within our government, schools, and general community who constantly attack The American Constitution, our freedom and all of our rights~! It is they who do not take ALL assaults upon our freedoms and rights seriously, who are the most dangerous enemies of the American people~! The criminal monsters who constantly work to destroy our Constitutional freedom and rights need to be removed from any power or authority and imprisoned as traitors~!!! If anyone does not support ALL of Americans freedom and rights, they should leave this country and NEVER return, because they are not wanted or welcome here and their sick evil influences will no longer be tolerated~!!! Leave Americans who love our freedom, rights, and country alone and go find another country that better accommodates your hateful destructive insanity~!!!
Thank you for your attention on this matter~!
Sincerely, Mike