Recently, my colleague Julie Fay and I penned an article for the National Business
Officers Association (which represents independent schools) for
their national publication "Net Assets Now". We focused
on how schools can address free speech in the context of
independent schools.
In the current political climate, independent schools face complex
questions about free speech, such as whether teachers can display
political stickers or attend rallies. As we note in the article,
schools are revisiting their policies on employee speech to
navigate these divisive issues. This summer, many schools engaged
in discussions to understand the legal boundaries of political
speech and developed policies to guide faculty and staff on
acceptable expressions both in and out of the workplace.
Among the topics we address is the notion that nonprofit independent schools must adhere to IRS restrictions on political activity, stemming from the Johnson Amendment, which mandates that tax-exempt organizations remain non-partisan. This means schools cannot promote or oppose political candidates or engage in issue advocacy that could influence elections. Determining when advocacy crosses into prohibited political activity can be challenging, requiring careful consideration of the timing and content of public statements.
While private schools have broad authority to regulate disruptive employee speech, they must also consider protections under anti-discrimination, whistleblowing, and labor laws. Some states, like Connecticut, extend free speech protections to private employees, provided the speech addresses matters of public concern. Ultimately, we recommended that schools should develop policies that balance the need for an orderly educational environment with employees' rights to free expression, ensuring clear guidelines on what constitutes acceptable speech and behavior.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
