The emergence of political activism in the 2008 presidential election extended throughout the country and even to where partisan politics have no place: the public school classroom. In 2004, the New York City Board of Education enacted a regulation that prohibited teachers from wearing any material supporting political candidates or organizations. During the 2008 election, teachers who wanted to wear partisan political buttons in the classroom while teaching claimed that the regulation violated their First Amendment rights. Although the Southern District of New York ultimately held that the teachers had no First Amendment claim, the court's decision, which involved sorting out three different tests and the variations of those tests, demonstrated the inconsistency between the courts' approaches to determining the First Amendment protections of teachers' in-class speech. Some courts allow teachers to undermine decisions made by elected officials at the state and local levels about what should be said in the classroom. These decisions often take weeks, months, or even years to make. In these jurisdictions, teachers can interject their personal views, which may be inconsistent with those of the local community and school board, and then hide behind the First Amendment as a grant of authority to do so. The Supreme Court has not definitively determined to what extent teachers’ instructional speech is protected by the First Amendment, and the circuits are currently split on his question.
Note, First Amendment Protection of Teachers' Instructional Speech: Extending Rust v. Sullivan to Ensure That Teachers Do Not Distort the Government Message, 58 Clev. St. L. Rev. 185 (2010)