Dive Brief:
- Texas' statewide teachers union sued the Texas Education Agency on Tuesday over state investigations into more than 350 public school teachers and staff who posted comments about the assassination of conservative activist Charlie Kirk.
- The state education agency on Sept. 12 directed Texas public school superintendents to report educators who posted "reprehensible and inappropriate content" on social media about Kirk's death. The American Federation of Teachers' Texas chapter, which brought yesterday's suit, said the posts were made on teachers' "own time and using their own resources" and were often posted on their private pages.
- According to the Texas AFT lawsuit, the letter "unleashed a wave of retaliation and disciplinary actions against teachers." The Texas Education Agency did not respond to K-12 Dive's requests for comment.
Dive Insight:
Following Kirk's assassination in September, educators at K-12 schools and colleges were fired for sharing critical views of the right-wing activist.
"We saw pockets of issues where somebody was trying to fire teachers," Randi Weingarten, president of the American Federation of Teachers, told a press conference on Tuesday. "Most superintendents in most districts were like, 'Let's get back to business. Let's figure out how to make people feel safe in how we deal with these things.'"
By about a month after Kirk’s assassination, some firings had led to a handful of lawsuits from educators who were impacted, including against school districts in Georgia and South Carolina. Those lawsuits are still pending.
But Tuesday's action, filed in U.S. District Court in Texas against the Texas Education Agency and Commissioner Mike Morath, is among the most high-profile of the lawsuits to date. Florida was the only other state to send a memo to superintendents warning of consequences for negative speech by teachers in the wake of Kirk's assassination, according to Weingarten. Governors and officials in other states including Indiana and Virginia also warned of consequences for teachers making statements on social media in the wake of Kirk's death.
Texas AFT President Zeph Capo said in the Tuesday press conference that TEA's September letter from Morath was "overly broad" and has chilled teachers' speech outside of the school building. Out of the hundreds of cases investigated by the state, 95 remain open, according to AFT leaders.
Many of the cases were cleared, Capo said. However, Texas teachers in some cases were reprimanded, placed on administrative leave, or fired — regardless of whether their posts disrupted school operations and in violation of their First Amendment rights to free speech. State investigations could even result in educators' teaching certificates being revoked, the Texas AFT lawsuit said.
The lawsuit asks the court to rescind TEA's September policy and to end all related investigations. It also asks that the agency be required to issue a new letter to superintendents clarifying that TEA does not mandate reporting of teachers who commented on Kirk's assassination.
"To be clear, we are not talking about an educator walking into their classrooms and sharing thoughts on the assassination with their students," said Capo. "The educators commented on the controversial nature of Charlie Kirk's statements on their personal, private social media and outside of their official capacity."
Some teachers are on temporary assignments as their investigations are pending, while others were told that they violated policy but were still allowed back to work, said Capo.
In 2024, the U.S. Supreme Court protected the First Amendment rights of school board members and other public officials as related to social media use under some circumstances.
The ruling in O’Connor-Ratcliff v. Garnier and Lindke v. Freed laid out a framework for when a public official’s personal social media activity is considered state action.
According to the framework, public officials’ social media speech is considered public only if the public official had the power to speak on the government’s behalf and only if the official was exercising that authority when posting on social media.
The boundaries around when teacher speech is protected have also been outlined by earlier Supreme Court cases, including but not limited to Pickering v. Board of Education.
However, Morath's letter does not lay out specific criteria for when teachers may be punished for social media posts that are critical of Kirk.
"Even if our educators wanted to comply with this bad-faith policy, the overly broad language makes it nearly impossible to know what is and isn't acceptable," said Capo. "The only real criterion — if you call it that — is if Commissioner Morath personally finds the post reprehensible."
