The policy outlining freedom of speech rights for Washoe County School District employees may soon be rewritten. While the proposed policy appears to respond to public outcry over the alleged prohibition on teachers addressing issues like Black Lives Matter in classrooms, it’s also worded such to attempt to muzzle employees when they’re not in school.
As written in the proposal put together by the school district’s legal staff and presented to the WCSD board of trustees on Tuesday, the name of the policy itself will change and no longer contain the words “freedom of speech” or “freedom of expression.”
Instead, WCSD board policy 4500 will be called “District Employee Speech.”
The policy was recommended to be revised after outcry from students, school district employees and parents surrounding another board policy. Board policy 1310 generally addresses “political activity in schools,” and many people—including district administration—interpreted its contents as prohibiting district employees from discussing certain current issues with students if they might be defined by some as “political.”
The public ire mostly surrounded the assumption that this might include social movements like Black Lives Matter and other human rights issues. However, the district’s board of trustees came to the decision that issues like these were best defined in board policy 4500—and that 1310 was geared more toward addressing political activity on school grounds by actual politicians or candidates.
As laid out in the proposed rewrites of the policy, employees—teachers being the primary employees of concern—would, in fact, be allowed to discuss myriad things from Black Lives Matter to QAnon or LGBTQ+ in certain contexts within schools.
Specifically, the policy rewrite proposes that, “Educators may engage in conversations regarding controversial issues of public interest, in the news, or outside the curriculum, if relevant to their class. Educators must recognize their influence on students; and thus, these conversations are not opportunities to promote or advocate personal values or beliefs regarding politics, religion, or other cultural issues.
“When…issues are related to the District’s school system and its programs, the employee’s freedom of expression must be balanced against the interest of the District.”
“The role of educators is to facilitate conversations about issues in an inclusive environment and create safe spaces for students to make sense of the world around them. Educators should consider the age and maturity of students when engaging in such topics.”
The rewrite also seeks to clarify that district employees are welcome to display posters, placards, bulletin boards and similar things promoting civil rights and social justice issues that fit within the parameters of approved “district speech” as adopted by the board of trustees—though Chief Legal Counsel Neil Rombardo reiterated several times to trustees that defining “district speech” would be a task lying ahead of them should the rewrite be approved.
Trustees questioned and argued over whether the policy rewrite would open the schools to displays of everything from Blue Lives Matter to Black Lives Matter to the Confederate flag and more. Rombardo again explained that this will depend upon the voice outlined by trustees as acceptable district speech.
“It will be up to you to decide what that voice is,” he said.
Policy change would curtail employee speech outside of schools
The first paragraph of the rewritten policy reads as follows: “The Board of Trustees (Board) acknowledges the right of Washoe County School District (District) employees to speak out on issues of public concern when speaking as private citizens. However, when those issues are related to the District’s school system and its programs, the employee’s freedom of expression must be balanced against the interest of the District. This policy intends to help clarify this balance and therefore avoid situations in which an employee’s expression could conflict the District’s interests.”
This in and of itself may not seem alarming. However, further reading of the proposed rewrites reveals that the district is seeking to stop employees from speaking outside of schools in any capacity related to their jobs.
Image: Trevor Bexon / This Is Reno
According to the proposed rewrites, employees may speak as private citizens on issues related to public concern. However, “specific issues, concerns, or grievances regarding District employees’ work are not considered matters of public concern,” according to the policy.
If the rewrites are approved, district employees who publicly speak about issues concerning their jobs could be subject to discipline.
But what is the actual intent? Does it mean employees couldn’t make their grievances with work conditions public by talking with journalists? Does it mean they couldn’t openly make public comment regarding things related to their jobs during school board meetings? Does it mean that employees who report something work-related to an outside agency—as WCSD attorneys argued Trina Olsen should have when asking for her case against the district to be dismissed—would be violating the policy?
This Is Reno asked these questions of the school district. The district responded, “The proposed changes to WCSD Board Policy 4500 are consistent with United States Supreme Court law, and the Washoe County School District is not attempting to infringe upon the rights of any employee to speak or otherwise communicate freely.”
In regard to the policy for the reporting of grievances, the district said it has been in place for some time. The district, it said, “asks that employees who have concerns or questions about any workplace issue should approach their immediate supervisor to discuss these issues so they may be addressed appropriately.”
District employees vs. private citizens
This is not the only language in the proposed rewrites that appears to suggest a muzzling of employees should the policy updates be accepted. The following seems to similarly suggest the news media and social media would become off limits as outlets for teachers: “If employees identify themselves as a District employee while engaging in the speech, the employees are not speaking as private citizens.”
One part of the policy takes direct aim at social media—something teachers have been using throughout the pandemic through Facebook groups like Empower Nevada Teachers: “Personal social network and social media accounts must be kept separate from work-related accounts and District identifiers to preserve the status of private citizen.”
Image: Trevor Bexon / This Is Reno
Bob Fulkerson of Progressive Leadership Alliance of Nevada took note of the proposed policy rewrites, saying, “Over the past year, teachers have been outspoken at Trustee meetings, in online forums, and in the press on issues related to COVID, racism, and other items that directly impact their lives and their students’ lives. If this policy is aimed at stopping that kind of participation and free speech, it is blatantly authoritarian and must be stopped.”
There’s also evidence that restricting government employee speech is against the law.
Frank LoMonte, the director of the Brechner Center for Freedom of Information at the University of Florida, wrote for Poynter in 2019 about a research report on this very issue.
He said, “Prohibiting government employees from sharing their candid observations isn’t just bad for journalism. It’s against the law.”
Yet it is also surprisingly common, he noted. “Although the practice of gagging public employees from giving unapproved interviews is pervasive across all levels of government, decades’ worth of First Amendment caselaw demonstrates that blanket restrictions on speaking to the media are legally unenforceable.”
At the end of their meeting, the trustees voted 5-2 to accept the rewrites and additional ones they’d added during the meeting and to forward the proposed policy 4500 to a future meeting for consideration for preliminary approval.
Board Vice President Andrew Caudill and Clerk Ellen Minetto voted against it. Caudill and Minetto repeatedly told their fellow trustees during the meeting that they were uncomfortable with the idea of the board defining district speech and thought it could open the board up to long and controversial battles between district priorities and divided public sentiments. None of the trustees questioned the limiting of employees’ rights to speech.
