Legal Aspects to Freedom of Speech for Coaches, ADs in the Workplace

In the March issue of High School Today, our Legal Issues featured the First Amendment freedom of expression protections for students (especially student-athletes) who want to display or protest at school events.

This month, we look at the same issue from the employee/ coach/athletic director perspective. Speech and expression in the workplace and by employees raise constitutional and practical questions, especially when employees are public servants (work at public schools). These questions become especially high-profile for coaches in public schools and colleges.

Coaches occupy a unique role at school in that they may be coaches and teachers and/or administrators, or they may be hired singularly in the role of coach. Either way, they are public employees with authority and supervisory control over students. But their duties also involve mentoring, motivating and informal interactions with student-athletes, which can influence them, so the supervisory power dynamic is unique as well. But they are also people with opinions, thoughts and beliefs, and they want to express them at times.

The Supreme Court cases that impact the limits on expression by public employees are, most notably, Pickering v. Board of Education (1968), Connick v. Myers (1983), Garcetti v. Ceballos (2006) and Kennedy v. Bremerton School District (2022). These cases provide a framework for understanding how the courts determine when the First Amendment protects a coach’s speech and when an employer may discipline or restrict that expression. Understanding these decisions and how they interact is essential for coaches, athletic directors and school administrators.

Pickering v. Board of Education (1968)
Pickering involved a teacher who was terminated after writing a letter to the editor criticizing the school board. In finding for Pickering, the Court established a two-step analysis:
(1) Was the speech on a matter of public concern? And if so,
(2) Does the employer’s interest in an efficient, effective workplace outweigh the employee’s free-speech interest?

There was also discussion in Pickering about the fact that Pickering’s statements were not “false or reckless,” implying that had they been, the outcome may have been different.

Connick v. Myers (1983)
In Connick, an assistant district attorney was upset about a transfer and circulated a questionnaire about office morale and policies; she was fired after refusing reassignment. (Fun fact: the DA was Harry Connick, Jr.’s dad) A closely divided Court held that most of Myers’ questionnaire dealt with personal grievances rather than matters of public concern, so the First Amendment did not protect her speech.

In this case, context and content matter. Speech that primarily addresses private or internal office disputes or grievances is not a matter of public concern, and is, therefore, less likely to be protected. This clarifies the first part of the Pickering test.

Garcetti v. Ceballos (2006)
In Garcetti, a prosecutor was disciplined after he recommended dismissal of a case because he (and other ADAs) questioned the validity of a sheriff’s search warrant, and he was later called to testify for the defense. In this case, the Court concluded his actions were part of his official duties and thus were not protected under the First Amendment.

For coaches, Garcetti is consequential because much of what they produce, including game plans, scouting reports, disciplinary recommendations, player and coaches’ evaluations, and official statements to the media, is obviously within their official duties. Under Garcetti, such speech can be regulated by the employer without raising First Amendment concerns.

However, Garcetti didn’t fully define the line between “official duties” and “citizen speech.” This can create confusion. Is a coach’s public posting about a school policy or a state law matter “official” if posted using personal accounts outside work hours? Possibly seems to be the answer. This has recently come up in political and social hot topics and will likely come up again. What we do know: where speech is truly of public concern and not part of job duties, the Pickering test applies.

Kennedy v. Bremerton School District (2022)
In Kennedy, a high school football coach who prayed on the field after games, and, in some instances, involved players, was disciplined by the school district. Unlike Garcetti, Kennedy centered on the religious freedom and freedom of expression clauses in the First Amendment. The Supreme Court ruled in favor of the coach, holding that his postgame prayers were private religious expression protected by both clauses, and the school district’s actions violated his rights.

Kennedy’s significance and distinction is critical. First, in religious expression cases, it added a component to the application of Pickering and Garcetti. The Court was skeptical of treating private religious expression as unprotected when occurring in the workplace. The Court emphasized historical practices and the imperative not to “exclude religious viewpoints” from public discourse. Second, it limited public employers’ ability to cite concerns about perceived coercion and the issue of school-sponsored or endorsed religion to justify restrictions on an individual’s private religious expression, particularly when the expression is quiet, voluntary and not officially endorsed by the school.

Athletic directors and administration should help coaches and staff understand:

• Speech that is clearly part of coaching/athletic director duties, such as team strategy, performance evaluations, official communications with students and/or parents, and certain in-game commands, can be regulated by the employer. Conversely, commentary on matters of public concern (e.g., school policy, budget decisions, broader social issues) made outside official duties may qualify for protection. Coaches should be mindful of the context: the time, place and where they say/post the comments will matter.

• Speech that addresses matters of public concern, including politics, public safety, school policies or systemic issues, will have stronger protection than speech that is primarily a personal gripe. Coaches discussing public issues on social media or with the press are more likely to be protected, provided the speech is not part of their job duties, or they otherwise indicate that they are speaking for the school.

• Kennedy strengthens protection for private religious expression by coaches, even when performed on school grounds, but it does not give them free rein to do whatever they want. The expression must be private, not officially sponsored, and not coercive. Schools still have legitimate concerns about student vulnerability to the special influence and power a coach has over the student-athletes, and the courts will weigh these coercion risks and context.

• Safety, disruption and coercion are heavily weighted. Even protected speech can be restricted if it materially disrupts team operations or undermines discipline and authority. Schools can act when speech impedes workplace functioning, creates safety risks, or is harassing or discriminatory. Courts will balance the coach’s interest in expression against the school’s need to maintain order and protect students.

• Private schools are different. Coaches employed by private schools or clubs should consult their employment contracts, handbooks and organizational policies. Many private employers adopt their own speech or conduct rules, which are enforceable as private agreements.

• Know and train staff members on policy. Public school districts should have viewpoint-neutral policies that address coercion, student welfare, harassment and disruption while respecting constitutional protections. Training coaches to distinguish official duties, use social media appropriately and set boundaries with students helps reduce conflict and confusion.

The Garcetti and Kennedy decisions leave open some practical uncertainties. Kennedy did not overrule Garcetti; it added analysis specific to religious expression. Questions remain about the scope of Garcetti for coaches as it relates to public-facing communication (e.g., coaches with media obligations or in their roles as school spokespersons), and about how courts will treat social media posts made by coaches in personal capacities. Ultimately, the analysis remains fact-specific: similar conduct by two coaches might produce different outcomes depending on factors such as context, audience and perceived coercion.

For coaches in public schools, freedom of expression is governed by a layered framework. Coaches and school administrators must navigate these doctrines carefully, developing policies and defining roles that account for these issues. District, school and athletics leadership should encourage communication when these issues arise (or, when possible, beforehand) and consult counsel for any clarification.

W. Scott Lewis, J.D., is a managing partner with TNG Consulting, chair of the National Association for Behavioral Intervention and Threat Assessment (NABITA) Advisory Board, and co-founder and advisory board member of the Association of Title IX Administrators (ATIXA). He also consults with and trains numerous sports organizations and governing bodies at all levels from high schools to Olympic-level athletes, trainers, coaches and staff, including working with the NCAA, NJCAA and the National Interscholastic Athletic Administrators Association (NIAAA). He is the legal counsel representative on the High School Today Publications Committee.