Texas investigation into teachers’ posts after Charlie Kirk’s death violates their free speech, experts say

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The Texas Education Agency investigation into teachers’ social media comments after Charlie Kirk's killing has legal experts and public education advocates troubled by what they say amounts to a "witch hunt" that shows a lack of regard for educators' free speech rights.

The agency said earlier this month that it was looking into hundreds of complaints concerning teachers accused of making inappropriate remarks about the famous right-wing activist who was recently shot and killed at a college campus event in Utah.

The announcement came shortly after Texas Education Commissioner Mike Morath sent a letter to superintendents criticizing content he found “reprehensible and inappropriate” and promising to refer such posts to his agency’s investigative unit with a recommendation that the instructors have their teaching licenses suspended. Gov. Greg Abbott applauded the move, accusing the teachers of calling for or inciting violence. The state has since released information on the increasing number of complaints but not their specific content.

From lawyers to restaurant employees, people throughout the country have faced discipline or termination for making statements about Kirk’s killing. In Texas, many school districts have responded to complaints with statements condemning what administrators have described as hateful rhetoric and suspending or firing employees whose comments they felt violated their local codes of conduct.

Legal experts and public education advocates say the state’s reaction to remarks about Kirk — who often made comments and promoted rhetoric many found hateful, inappropriate and reprehensible — is an attack on teachers' right to express their opinions on matters of public significance, even if their employer finds them distasteful.

“What's especially troubling is the political pressure surrounding these investigations and the demands coming from the highest officials in the state that teachers face investigation and punishment for their comments about a public figure,” said Aaron Terr, director of public advocacy for the Foundation for Individual Rights and Expression.

Public school employees do not surrender their First Amendment rights when they take the job, Terr said. When teachers speak in their personal capacity, even on school grounds but outside their official duties, they retain their right to free speech, he said.

In his letter to district superintendents criticizing teachers’ remarks, Morath said the social media comments under scrutiny could have violated Texas Educators’ Code of Ethics and that his agency would review them to determine “whether sanctionable conduct has occurred.”

The state’s code of ethics lays out how teachers should behave within the workplace and sets standards for how they should interact with colleagues, students, parents and the school community. Physically harming a child or knowingly making false statements about another employee, for example, would clearly violate the code.

The code also calls on educators to display “good moral character,” meaning behaviors that indicate “honesty, accountability, trustworthiness, reliability and integrity,” and to not engage in “moral turpitude,” like fraud, theft or violence.

Generally, two processes can play out when a district or the state thinks an educator has violated that policy.

State law allows local school boards to fire or suspend a teacher at any time for “good cause” as determined by that body. After an educator receives notice of a district’s proposal to fire or suspend them, they can request that a state-appointed examiner conduct an investigation. The school board does not have to follow the investigator’s final recommendations. Teachers can then appeal the board’s decision to the education commissioner.

Meanwhile, when the state education agency receives public complaints about a teacher, it conducts a preliminary investigation to determine if further action is necessary. The next step is a formal investigation — when the state places a “warning” on the educator’s teaching certificate — which determines what disciplinary action the state may take. That could include revoking the instructor’s teaching license.

But legal experts say that if the state wants to take disciplinary action against an educator for speaking in their personal capacity, it needs to consider whether the teacher’s comments caused a significant disruption to the workplace or their ability to do their job. Courts rely on a test examining those factors and weighing whether a public employee was disciplined for speaking on a matter of public concern or a private grievance. The former could violate First Amendment protections.

Abbott recently responded to a social media post showing a teacher who, in response to Kirk’s killing, allegedly called his death “karma.” According to the post, the educator had also shared a graphic showing controversial comments from Kirk throughout his career. The governor criticized the post, saying, “Assassination is not Karma,” and that the state had added the teacher’s remarks to its investigation.

However, the post may not rise to the level of endorsing or promoting violence, said Elly Brinkley, a staff attorney at the free expression advocacy organization PEN America, who also noted that the state would have to meet “a very high bar” to prove that claim in court. Widespread complaints or outrage, Brinkley said, likely do not constitute a workplace disruption that would justify disciplinary action against a teacher.

Experts say the state’s implementation of policies or actions that cause employees to refrain from speaking on public matters out of caution could also violate the Constitution.

“We're seeing so much pressure from lawmakers in Texas and around the country to crack down on this speech,” Brinkley said. “Even if the disruption may be coming from private citizens’ complaints, it's also part of this larger climate of intimidation. So I think it's tricky territory for the First Amendment, but I don't think that we can deny the significance of all of this public pressure as well.”

The state education agency did not respond to questions from the Tribune about its investigation, including how it planned to factor in teachers’ First Amendment protections. Abbott’s office referred the Tribune to recent remarks from the governor, in which he said Texas “must send a signal that celebrating the assassination of a free speech advocate is wrong in a civil society.”

Zeph Capo, president of the Texas American Federation of Teachers, said he is worried that the governor, the education commissioner and state lawmakers are “whipping this frenzy up,” blurring the line between genuine complaints from Texans and those seeking to score political points through what he described as a “witch hunt."

Across the state’s more than 9,000 public school campuses, Capo said, teachers have varying beliefs. If he looked hard enough, he asserted that he could find comments posted by educators that others would disagree with or find unflattering, such as during conversations about mass school shootings or the Second Amendment.

“Firing them,” he said, “is not really the thing that should be done.”

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