SOUTHLAKE, Tex. — The Rutherford Institute is challenging attempts by a Texas school district to prohibit its employees from publicly criticizing the school or its policies. In a letter to officials at the Carroll Independent School District, Rutherford Institute attorneys warn that the non-disparagement clause included in the District’s employment contracts, which requires employees to “agree to not disparage, criticize, or defame the District, and its employees or officials, to the media,” constitutes a restriction on speech in violation of the First Amendment that would likely not hold up in court.
“As public bodies entrusted with the care and education of America’s children, schools should be free speech forums that encourage critical thinking skills,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Forcing teachers to muzzle their concerns about the government’s policies or actions sends a chilling message to students that there is no room for transparency and accountability in government.”
In 2021, the Texas legislature enacted House Bill 3979, commonly referred to as Texas’ “critical race theory law,” which requires teachers who choose to discuss “controversial issues of public policy or social affairs” in the classroom to strive to present multiple perspectives. During a training session, an administrator at the Carroll Independent School District suggested that if teachers have a book on the Holocaust, they should also provide a book from an opposing perspective. The suggestion dismayed teachers, spurring them to speak out publicly on the issue and resulting in significant media attention and criticism of the school district for its interpretation of House Bill 3979. Several months later, apparently in response to the media backlash, a non-disparagement clause was included in the District employees’ annual contracts. The clause prohibits criticism of the District, its officials, and employees to the media but does not prohibit employees from praising or commending the District and its officials. However, as Rutherford Institute attorneys warn in a legal analysis provided to the District, muzzling teachers in order to avoid bad press is unconstitutional. Whether the individual is a teacher, parent, student or member of the community, the right to publicly criticize a government body is firmly grounded in the First Amendment. Moreover, such content-based restrictions on speech “are presumptively unconstitutional.” As the letter notes, “public school teachers…cannot ‘constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.’” Non-disparagement policies by government employers have also been found unconstitutional. Rutherford Institute attorneys concluded by calling on the Carroll Independent School District to remove the non‑disparagement clause from the District’s employment contracts in order to ensure that its policies align with the spirit and the letter of the Constitution.
Article posted with permission from John Whitehead
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