One of Texas’ largest teacher unions wants a federal court to block Education Commissioner Mike Morath and the state education agency from investigating teachers accused of making inappropriate remarks about conservative activist Charlie Kirk’s assassination on social media, saying the act violates legally protected speech.

A lawsuit the Texas American Federation of Teachers filed Jan. 6 argues that Morath “unleashed a wave of retaliation and disciplinary actions against teachers” when he urged school districts to report “reprehensible and inappropriate” content about Kirk’s killing last year.

Texas AFT also wants the court to require that Morath retract his policy calling on school leaders to report any instances of “inappropriate content” related to Kirk’s death posted to teachers’ social media accounts. The lawsuit also asks the judge to require that Morath issue new guidance making clear to superintendents that districts do not have to report such conduct to the state if the alleged speech is legally protected.

The Texas Education Agency has dismissed hundreds of complaints or found them unsubstantiated. On Jan. 5, the agency said it was still investigating 95 complaints.

Here’s what we know.

Background: As of October, the Texas Education Agency was investigating more than 350 complaints that educators made inappropriate social media remarks about Charlie Kirk, the late conservative activist who was shot and killed while speaking at a Utah college.

Kirk founded Turning Point USA, a conservative nonprofit known mostly for its work on college campuses, where the organization promotes itself as a hub for open debate and urges students to “promote the principles of fiscal responsibility, free markets, and limited government.” Kirk was often praised by conservatives as a champion of free speech and criticized for comments that many other Americans found hateful toward LGBTQ+ communities, non-Christians, people of color and women.

After his death, Texas lawmakers and activists called for the firings and removals of anyone mocking Kirk or celebrating his death online.

Texas Education Commissioner Mike Morath sent a letter to district superintendents, saying he planned to refer “all documentation of educators that have proliferated such vile content” to his agency’s investigations unit. The investigators will determine if the content violates Texas educators’ code of ethics and whether it warrants disciplinary action, Morath added.

Morath and Gov. Greg Abbott have said that teachers whose actions called for or incited violence would have their teaching license suspended by the State Board for Educator Certification. Morath also called on school leaders to report additional instances of alleged misconduct related to Kirk’s killing to the education agency, which has typically conducted such investigations for acts like abuse or harassment.

The education agency has not released details about what the hundreds of complaints allege. The Texas Attorney General’s Office said the agency does not have to provide records of the complaints.

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.

Why the Texas American Federation of Teachers is suing: The union cites the cases of four members who it believes faced unfair disciplinary action for private social media remarks related to Kirk’s death. Those actions include termination, being subjected to investigations, or having their employment records negatively marked.

In each of those cases, the teachers faced discipline “solely for their speech, without any regard to whether the posts disrupted school operations in any way,” according to the complaint. The teachers’ comments ranged from criticizing Kirk for statements he made about Black Americans to condemning the activist’s stance on immigration, the suit states.

The lawsuit describes Morath’s letter asking superintendents to report inappropriate social media posts as “vague” and “overbroad” because it does not ask school leaders to evaluate such posts’ impact on the school environment.

The lawsuit notes that the letter has led to arbitrary and inconsistent enforcement across districts.

It adds that the education agency did not issue similar letters with respect to teachers who posted about the assassinations of Democratic Minnesota lawmakers Melissa Hortman or John Hoffman. A gunman killed Hortman and her husband at their home last year while wounding Hoffman and his wife at their residence.

“Instead, the TEA appears to mandate investigations only for school personnel voicing criticism of the Commissioner’s preferred political figure,” the lawsuit says.

Numerous Texas AFT members have since deleted their social media posts and accounts. The lawsuit says the latter shows that teachers “remain fearful” about sharing their opinions on matters of public concern if their viewpoints do not align with those of the Texas state government.

“I’ve never seen anything in modernity be something like this,” said Randi Weingarten, president of the national AFT, “where somebody said, ‘Look for, find somebody who said something you don’t like about Charlie Kirk — report them so we can fire them.'”

What the Texas Education Agency is saying: The state’s education agency declined to comment because it does not speak on pending legal matters.

A day before Texas AFT’s lawsuit, Texas Education Agency spokesperson Jake Kobersky told The Texas Tribune that the agency is still reviewing 95 complaints, while all others have been dismissed or unsubstantiated.

In a Sept. 15 statement, Morath said, “While all educators are held to a high standard of professionalism, there is a difference between comments made in poor taste and those that call for and incite further violence — the latter of which is clearly unacceptable.”

During a November event at the University of Texas at Austin, Morath said that while districts had taken action at their discretion on some complaints, the agency had not yet disciplined any educators.

“Some of those complaints are clearly people that are personally settling scores with others they don’t like, and those cases will just get closed,” Morath said. “The ones that we’re going after, from an enforcement perspective, are very clearly violations of the educator code of conduct.”

Broader impact: Legal experts previously told the Tribune that if the state wants to discipline 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.

Punishments against educators speaking on a private grievance or a matter of public concern could violate First Amendment protections, as could policies or actions that cause employees to refrain from speaking on public matters out of caution, experts said.

Disclosure: Texas AFT and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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