Breaking: Not Every Opinion Needs to Be Posted

There are just 82 days until the 2026 midterm elections on November 3, 2026. Only a handful of state primaries remain, so the matchups for the general election are fairly well set. With another fiercely contested national election looming, it's a good opportunity to remind school board members, administrators, and teachers that an impetuous or hotheaded social media post can have lasting career repercussions.

This may well be the most confusing cybertrap for educators, since the idea of losing one's job over an opinion posted online seems to fly in the face of the First Amendment to the U.S. Constitution. For those who need a quick refresher, the relevant part of the First Amendment reads as follows:

Congress shall make no law … abridging the freedom of speech, or of the press ….

Until the early part of the 20th century, the First Amendment only limited the actions of the federal government. However, in a series of decisions from 1925 to 1940, the United States Supreme Court held that the First Amendment also restrains the actions of state governments and their agents.

In theory, that means that public school employees should be able to express their opinions without fear of discipline or termination by district administrators or state officials. But constitutional law is rarely straightforward, and this topic is no exception.

The Shrinking Boundaries of Educator Speech

The Supreme Court took its first whack at the parameters of educator speech in 1968, when it decided Pickering v. Board of Education. Marvin Pickering, a science teacher at Lockport High School in Illinois, wrote a letter to his local newspaper complaining that his school board prioritized spending on athletics over academics. The board fired him.

By an 8-1 vote, the Supreme Court held that Pickering's firing violated his First Amendment rights. Justice Thurgood Marshall, writing for the majority, established a threshold question: was the teacher speaking on a matter of public concern? If the answer to that question is yes (and school spending choices are obviously a matter of public concern), then the next step is to apply a balancing test: are the teacher's free speech rights outweighed by the school board's interest in a disruption-free workplace? Since there was no evidence that Pickering's letter to the editor had caused any disruption, his speech was constitutionally protected.

Fifteen years later, the free speech rights of public employees narrowed further when the Supreme Court ruled 5-4 that an assistant district attorney was not unconstitutionally fired for complaining about the conditions of their employment. Connick v. Myers, 461 U.S. 138 (1983).

Then, in 2006, the Court went further, holding that if a public employee makes statements as part of their official duties, then they are not entitled to First Amendment protection. Garcetti v. Ceballos, 547 U.S. 410 (2006). In the words of Justice Anthony Kennedy, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes[.]"

So where does that leave teachers in 2026? Basically, constantly looking over their shoulders. The first challenge is to get to the Pickering balancing test. That means no social media complaints about administrators, working conditions, or other employment-related issues; it has to be a matter of genuine public concern. Next, no potentially controversial statements in the classroom or as an identified representative of the school.

Assuming that you have made a genuinely personal statement about a significant political issue, the remaining question is whether your comments interfere with the school's legitimate interest in efficient operation. Typically, this is framed either as disruption (in the case of controversial opinions and statements) or loss of effectiveness (often involving sex in some way). A trial court is charged with determining the extent of the disruption, if any, and whether it outweighs the teacher's rights under the U.S. Constitution.

These are very fact-specific cases. Here's a recent example that helps illustrate the type of evidence a trial court may find persuasive.

Hedgepeth v. Britton (2025)

In the summer of 2020, Jeanne Hedgepeth, a social studies teacher at Palatine High School in Illinois, was vacationing in Florida. During her trip, the murder of George Floyd occurred in Chicago. Hedgepeth was reportedly upset by the media coverage around Floyd's death and began discussing the incident on her personal Facebook page (on which she did not identify as a teacher in either District 211 or Palatine High School).

Among other things, she shared a meme calling for the Floyd protesters to be hosed down by the contents of Chicago septic trucks. She also posted a lengthy protest over the use of the term "white privilege," writing in part:

I find the term ‘white privilege’ as racist as the ‘N’ word. You have not walked in my shoes either so do not make assumptions about me and my so called privilege.  You think America is racist? Then you have been hoodwinked by the white liberal establishment and race baiters like Jesse Jackson and Al Sharpton.

Community members reacted angrily to Hedgepeth's social media comments, and on July 16, 2020, the District 211 school board voted 5-2 to terminate her employment. In July 2021, Hedgepeth filed suit against the District, the superintendent, and the five board members who voted to oust her.

In a decision issued on February 20, 2024, U.S. District Court Judge Manish Shah held that the District did not violate Hedgepeth's free speech rights. Specifically, he found that her online comments resulted in demonstrable disruption and reduced effectiveness as a teacher:

The concerns raised by students and parents regarding Hedgepeth’s role as a teacher were a reasonable consideration for the District. Students and parents are not “outsiders” attempting to silence speech, but participants in public education, without whose cooperation public education as a practical matter cannot function. [citation omitted] ... A government employer is not required to show actual interference with an employee’s ability to perform her job duties to prevail under Pickering balancing, but the assessment must be reasonable and supported by evidence rather than mere speculation. [citation omitted] The concerns expressed by community members constituted actual disruption, but it also provided a reasonable basis for defendants to conclude that Hedgepeth’s ability to perform her responsibilities as a teacher was compromised. These concerns touched on her ability to be unbiased in her role as a teacher, particularly to students of color.

The Court found that the District had received 113 emails (many with multiple signatures) and 44 public comments protesting Hedgepeth's remarks. It also noted that Hedgepeth had previously been suspended twice for "profane outbursts" at students in her classrom.

Taken together, the Court said,

[t]he concerns expressed by community members constituted actual disruption, but it also provided a reasonable basis for defendants to conclude that Hedgepeth’s ability to perform her responsibilities as a teacher was compromised. These concerns touched on her ability to be unbiased in her role as a teacher, particularly to students of color.

The District Court's opinion was upheld by the Seventh Circuit Court of Appeals in a decision issued in late August 2025. The Court agreed with the District that Hedgepeth "did not lose her job because she expressed her views on a matter of public concern on Facebook. Rather, she lost her job because she posted a series of vulgar, intemperate, and racially insensitive messages to a large audience of recent PHS alumni."

With the help of her attorneys (who work for the conservative political action organization Judicial Watch), Hedgepeth petitioned the Supreme Court to review and overturn the Seventh Circuit decision. However, in mid-May 2026, the Court announced that it would not consider her case.

So, Do Teachers Have Free Speech Rights?

In theory, sure. But what teachers need to realize is that the impact of speech (assuming it is about a genuine public issue) is governed by a combination of three main factors: social heat, provocation, and distribution. The chances of disruption and loss of effectiveness within the school community rise with the level of divisiveness of a particular issue, how provocative your comments are, and how far they travel.

So, some warnings. Making a public comment about race, gender, riots, conservative or liberal figures or the murder thereof, assassination attempts, and so on, is likely to be more disruptive than offering an opinion on your town's mosquito control efforts.

If you phrase your comments in a hostile or dismissive fashion (which is all too common in the current political climate), you are more likely to upset members of your community than if you put forward a calm, rational argument. You may think you are actually being witty, but it is worthwhile to have someone else read your comment first to see if you are as funny as you think you are.

All social media should be considered public. The Hedgepeth case is yet another example (and I have dozens) of a teacher who thought she was sharing her comments on a personal page but soon discovered that everything she wrote could be screencaptured and shared. Her efforts to delete the offensive posts were of course futile; the internet never forgets.

But don't get too cocky, administrators. If one of your teachers says something online that you find offensive, you can't simply fire that teacher. Districts are paying out hundreds of thousands of dollars to educators who were precipitously fired for their comments about Charlie Kirk, without any evidentiary showing of disruption or loss of effectiveness.

Before disciplinary action can be taken, a district needs to actually document the types of response that will support a finding of disruption or ineffectiveness (unrest in the classroom, student protests or walkouts, diversion of resources, etc.). Mere allegations by school officials are not sufficient and are often expensive.

The next few months will be a trying time for people who feel passionately about their country and the direction it should take. Social media is, above all, an outrage generation machine, and it is far too easy to get sucked in. Every member of a school community should remember to practice restraint, offer forgiveness, and give grace as we navigate these choppy political waters.

A Postcard Postscript

First built in 1870, and then rebuilt after a fire in 1882, Walker Hall was known as Amherst College's "Temple of Science." The second iteration of the building stood for 80 years before being razed in 1963 to make room for the Robert Frost Library.