Do Teachers Have the Freedom of Speech?
What is the mission of the teacher? What duties are we to perform in the name of education? What policies and curricular activities are correct for us to teach? When do we stop being a teacher? When are we able to voice our own ideas? These are a few of the questions we hear when discussing the law and teaching. As teachers it is our moral obligation to educate people. How we go about educating them has always been a tenet of contention. But what has been surfacing even more is what it is we are allowed to teach them, and how our voices or ideas cannot be utilized to influence the education of our students. The scope of this paper is threefold: one look will be at what is it a teacher can or should say in regards to their “freedom of speech;” secondly, when can a teacher stop being a teacher? For example: can a teacher pose their personal views in an open forum such as the internet and still be held accountable under the school district’s policies? Thirdly, what is then immoral concerning a teacher’s behavior?
We explain to our students that the best way to learn is through practical experience, through research of topics and perspectives, to examine all facets of an argument and make our own decisions. Critical thinking skills have resurfaced in the last decade as a tantamount methodology for educating students. A form of education that was not heavily utilized in the previous decades. But as we stand on the precipice of differing ideologies we now tell our teachers to not use practical knowledge, inference or experience in their practice. Rick Theisen a social studies consultant in Maple Grove Minnesota and a former president of the National Council for the Social Studies explained, “You want to avoid indoctrinating your students, if you do that you’ve betrayed your mission as a teacher.” While education experts agree that students should be exposed to a variety of information and points of view there is less consensus on where a classroom teacher should draw the line in maintaining objectivity, sharing an opinion or advocating a particular stance. If a teacher has to suppress what they believe in does the then remove the authority that a teacher has in their classroom? Some experts advise that teachers leave their own beliefs outside of discussions of a contentious issue, be it abortion, affirmative action or war. “Ultimately you want the students opinions to be arrived at on evidence that’s supportable and reflects their values,” Mr. Theisen has said.
For many educators their role in guiding classroom discussion is not so neutral, Mr. Hellwig, the chairman of the social studies department at Northern Highlands Regional High School in Allendale, NJ believes that teachers have a responsibility to exercise their rights to free speech. “When a teacher holds back on their view the student may not be so interested in expressing their own. The teacher has a right to an opinion and to sit there and be mute is not going to serve the students well,” (Manzo, 2003).
Some districts have formulated policies over the past few years for addressing disputed topics in the classroom, the guidelines generally instruct teachers to present different points of view and to promote an environment that fosters a respect for all of the students’ opinions. Others have promoted a policy that stipulates that teachers should not reveal their own opinions about certain topics. While others suggest that teachers refrain from voicing their opinions at all.
Teachers have criticized such policies as infringing on their right to freedom of expression, and some teachers have run afoul of school policy. A Colorado middle school teacher drew complaints after she wore a pin that read: “Not My President, Not My War.” In Maine the state’s Army National Guard complained to state officials that children of military personnel had felt harassed by anti-war comments expressed by teachers and students. In Michigan a student was forced to remove his t-shirt which pictured President Bush with the slogan “International Terrorist.” In New Mexico two teachers were dismissed after refusing to remove anti-war signs from their classrooms. What is similar in all of these cases is that the right to free speech is only apparent when the free speech matches the status quo or policies of that district. This then becomes an issue of how much freedom does a teacher have in speaking? And what is the obligation of the teacher to speak freely?
Teachers can face an ethical quandary when their strong feelings overtake them. Educational experts caution not to take lightly the powerful influence they have over students beliefs at a malleable stage in their intellectual development. Yet these same experts claim that school is intended to prepare students to be active citizens, (Manzo, 2003): a role requiring them to weigh information on an issue and then make their own decisions about where they stand.
But while speaking about our freedom of speech can be debated on whether the importance falls on the rights of the individual or the rights of the many the law has established some interesting signposts. In Pickering v. BOE Supreme Court of the United States, 1968. 391 U.S. 563, 88 S.Ct. 1731. The Supreme Court held that freedom of speech while not absolute in all circumstances is nevertheless sufficiently strong to require that the state show a “compelling state interest” in order to overcome a teacher’s right to speak out on issues of public importance. The Court equated teacher’s right of speech with that of other members of the general public to criticize and comment on public policies and issues. In Ware v. Unified District No. 492, Butler County, State of Kansas, 881 F.2d 906 (10th Cir.1989); & Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987). The First amendment issue can be restricted if there is demonstration that the use will interfere with the efficient functioning or performance of one’s duties.
Under the Pickering test an employee’s First Amendment rights are protected “unless the employer shows that some restriction is necessary to prevent the disruption of official functions or to insure effective performance by the employee,” The employer’s burden to justify its restriction on speech increases in proportion to the value of that speech in the public debate. In focusing on the effective functioning of the employer’s enterprise a court shall consider “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” (Alexander et al, 2001).
While seemingly unrelated as this case pertains to immorality it is important to be noted here in this discourse: in Gaylord v. Tacoma School District No. 10 88 Wash.2d 286, 559 P.2d 1340 . James Gaylord, who held a teaching certificate, was discharged from employment as a high school teacher on the grounds of “immorality” because Gaylord was an admitted homosexual. Gaylord knew of his homosexuality for 20 years and engaged in homosexual company. He also knew his status if known would jeopardize his employment, damage his reputation, and hurt his parents. The school district first became aware of his homosexuality when a student mentioned that Mr. Gaylord was an admitted homosexual, when confronted Gaylord admitted to his being a homosexual. The Court looked at 2 pertinent facts: Was Gaylord guilty of immorality? Was there substantial evidence to demonstrate that his homosexuality impaired his teaching efficacy? The Courts decided that since the defendant claims that homosexuality is immoral and that Gaylord by admitting that he is homosexual is therefore immoral.
What does all of this mean to the classroom teacher? As teachers we are certified and licenses to educate students based on our skills learned as teachers, our knowledge base developed through our education, and our ability to be critical thinkers and analysts. And yet we are stifled by policies set forth by our governing school boards or officials. The Constitution guarantees the certain inalienable rights. But as we have seen through the reading and interpretation of the law these rights are not necessarily true for educators. The underlying concept is if our views will be disruptive to the functioning or performance of our school. This responsibility or interpretation falls upon the govern9ing body of the school. Therefore, a school board or official could claim that anyone wearing orange shirts on a particular day would cause a disruption in the functioning of the school. Thereby the rights guaranteeing freedom of speech would not apply. This of course sound ridiculous an absurdity by utilizing the law in the context of an orange shirt. But would this not be the actual circumstance in a setting of perhaps a strong Irish Catholic school district and the day in question was a St. Patrick’s Day celebration? As a teacher we need to know what our mission in our life is, we also have to realize that being a teacher is a lifelong everyday experience. At a recent school state competition gathering it was observed that parents and teachers alike did not smoke. This is not to say that these people did not smoke, but they did not smoke during the gathering. There were no signs stating that smoking was prohibited but rather it was assumed or known that since students were near by that smoking should not be done. How is this relevant? It is the same as screaming fire in a crowded movie theater. While we have the freedom of speech there are certain times and places we do not say certain things. This is understood by most Americans. What is not understood however is that teachers fall into this category of appropriateness of time and character as for every aspect of their lives for as long as they are teachers.
Further this discussion opens an array of difficulties for administrators. It becomes their job to instruct and direct their staff and their students on what is appropriate and what is not. A teacher was disciplined in the Wisconsin school system for telling students that while in school it was wrong and inappropriate to swear and use otherwise offensive language. But if those students went off of school grounds this teacher stated that they would not only support their offensive language but also defend their right to use it. While the off-school swearing activity never took place the teacher was reprimanded for suggesting to the students that this was an appropriate activity. The teacher tries to explain that they were discussing the practical applications of the First Amendment.
The difficulty lies within when does the language become disruptive or interfering with the day-to-day operations of the school? Too often we will see that administrators and school officials will measure the inappropriateness by their own ideals. As an administrator this cannot be done. It may well have to be done by the district’s and the governing board’s policies but a neutrality does exist here at this level. It must be stated that the importance of a well discussed and open dialogue be administered to both the students and the teachers. Concerns then on appropriateness, acceptance of other’s ideals and critical thinking skills will be eliminated when everyone realizes that their voice does matter. There was a case in Arizona where two teachers were put on suspension for having open debates in front of the school body. These two teachers were not only showing how to run a debate but also how to express opinions without resorting to violence or other inappropriate tactics. These teachers each represented one position on the encroaching war with Iraq. Originally only the anti-war teacher was suspended but the other argued that they had engaged in this activity together in order to express points of view in a critical analysis for the students.
The Gaylord case is also a powerful statement of what it is to be a teacher. Through this case, the Pickering case, the Hazelwood (Hazelwood School District v. Kuhlmeier Supreme Court of the U.S. 484 U.S. 260, 108 S.Ct. 562) cases we see that to be a teacher can be regulated by any different amount of opinion. That anything that is said in or outside of the class can be utilized as a means to measure one’s morality. Teachers do not have to agree with their supervisors or even their districts but as observed through these law cases they must follow through with their district’s ideologies or at the very least remain neutral. Teachers are not protected by the First Amendment. This seems to be the base summation of all these cases. And this does not only mean in school but in their everyday lives as well. Can teachers be reprimanded for unsolicited emails with objectionable content? What if people within the school district parents perhaps, email a teacher a humorous story with objectionable content. Since email is now considered public record, (Archer, 2002), can and will teachers be subjected to the context of these emails? It is disturbing how far we have gone to remove the right of Freedom of Speech from teachers, the people who exert the most influence on our students have been gagged from speaking their moral imperatives.
References:
Alexander, K. & Alexander, M. D. (2001). American Public School Law, 5th Ed. West/Thompson Learning: Belmont, CA.
Archer, J. (February 26th, 2003). E-Mail is Public Record, Districts Learn. Education Week vol 22 no 24. Educational Projects in Education: Bethesda, MD.
Manzo, K. K. (March 26th, 2003). War Lessons Call for Delicate Balance: Experts Advise Teachers to Set Own Views Aside. Education Week vol 22 no 28. Educational Projects in Education: Bethesda, MD.
Taylor, K. R. (November 2001). Remembering the Constitution: During stressful times it is important to recall the priceless rights guaranteed in the U.S. Constitution. Principal Leadership.
We explain to our students that the best way to learn is through practical experience, through research of topics and perspectives, to examine all facets of an argument and make our own decisions. Critical thinking skills have resurfaced in the last decade as a tantamount methodology for educating students. A form of education that was not heavily utilized in the previous decades. But as we stand on the precipice of differing ideologies we now tell our teachers to not use practical knowledge, inference or experience in their practice. Rick Theisen a social studies consultant in Maple Grove Minnesota and a former president of the National Council for the Social Studies explained, “You want to avoid indoctrinating your students, if you do that you’ve betrayed your mission as a teacher.” While education experts agree that students should be exposed to a variety of information and points of view there is less consensus on where a classroom teacher should draw the line in maintaining objectivity, sharing an opinion or advocating a particular stance. If a teacher has to suppress what they believe in does the then remove the authority that a teacher has in their classroom? Some experts advise that teachers leave their own beliefs outside of discussions of a contentious issue, be it abortion, affirmative action or war. “Ultimately you want the students opinions to be arrived at on evidence that’s supportable and reflects their values,” Mr. Theisen has said.
For many educators their role in guiding classroom discussion is not so neutral, Mr. Hellwig, the chairman of the social studies department at Northern Highlands Regional High School in Allendale, NJ believes that teachers have a responsibility to exercise their rights to free speech. “When a teacher holds back on their view the student may not be so interested in expressing their own. The teacher has a right to an opinion and to sit there and be mute is not going to serve the students well,” (Manzo, 2003).
Some districts have formulated policies over the past few years for addressing disputed topics in the classroom, the guidelines generally instruct teachers to present different points of view and to promote an environment that fosters a respect for all of the students’ opinions. Others have promoted a policy that stipulates that teachers should not reveal their own opinions about certain topics. While others suggest that teachers refrain from voicing their opinions at all.
Teachers have criticized such policies as infringing on their right to freedom of expression, and some teachers have run afoul of school policy. A Colorado middle school teacher drew complaints after she wore a pin that read: “Not My President, Not My War.” In Maine the state’s Army National Guard complained to state officials that children of military personnel had felt harassed by anti-war comments expressed by teachers and students. In Michigan a student was forced to remove his t-shirt which pictured President Bush with the slogan “International Terrorist.” In New Mexico two teachers were dismissed after refusing to remove anti-war signs from their classrooms. What is similar in all of these cases is that the right to free speech is only apparent when the free speech matches the status quo or policies of that district. This then becomes an issue of how much freedom does a teacher have in speaking? And what is the obligation of the teacher to speak freely?
Teachers can face an ethical quandary when their strong feelings overtake them. Educational experts caution not to take lightly the powerful influence they have over students beliefs at a malleable stage in their intellectual development. Yet these same experts claim that school is intended to prepare students to be active citizens, (Manzo, 2003): a role requiring them to weigh information on an issue and then make their own decisions about where they stand.
But while speaking about our freedom of speech can be debated on whether the importance falls on the rights of the individual or the rights of the many the law has established some interesting signposts. In Pickering v. BOE Supreme Court of the United States, 1968. 391 U.S. 563, 88 S.Ct. 1731. The Supreme Court held that freedom of speech while not absolute in all circumstances is nevertheless sufficiently strong to require that the state show a “compelling state interest” in order to overcome a teacher’s right to speak out on issues of public importance. The Court equated teacher’s right of speech with that of other members of the general public to criticize and comment on public policies and issues. In Ware v. Unified District No. 492, Butler County, State of Kansas, 881 F.2d 906 (10th Cir.1989); & Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987). The First amendment issue can be restricted if there is demonstration that the use will interfere with the efficient functioning or performance of one’s duties.
Under the Pickering test an employee’s First Amendment rights are protected “unless the employer shows that some restriction is necessary to prevent the disruption of official functions or to insure effective performance by the employee,” The employer’s burden to justify its restriction on speech increases in proportion to the value of that speech in the public debate. In focusing on the effective functioning of the employer’s enterprise a court shall consider “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” (Alexander et al, 2001).
While seemingly unrelated as this case pertains to immorality it is important to be noted here in this discourse: in Gaylord v. Tacoma School District No. 10 88 Wash.2d 286, 559 P.2d 1340 . James Gaylord, who held a teaching certificate, was discharged from employment as a high school teacher on the grounds of “immorality” because Gaylord was an admitted homosexual. Gaylord knew of his homosexuality for 20 years and engaged in homosexual company. He also knew his status if known would jeopardize his employment, damage his reputation, and hurt his parents. The school district first became aware of his homosexuality when a student mentioned that Mr. Gaylord was an admitted homosexual, when confronted Gaylord admitted to his being a homosexual. The Court looked at 2 pertinent facts: Was Gaylord guilty of immorality? Was there substantial evidence to demonstrate that his homosexuality impaired his teaching efficacy? The Courts decided that since the defendant claims that homosexuality is immoral and that Gaylord by admitting that he is homosexual is therefore immoral.
What does all of this mean to the classroom teacher? As teachers we are certified and licenses to educate students based on our skills learned as teachers, our knowledge base developed through our education, and our ability to be critical thinkers and analysts. And yet we are stifled by policies set forth by our governing school boards or officials. The Constitution guarantees the certain inalienable rights. But as we have seen through the reading and interpretation of the law these rights are not necessarily true for educators. The underlying concept is if our views will be disruptive to the functioning or performance of our school. This responsibility or interpretation falls upon the govern9ing body of the school. Therefore, a school board or official could claim that anyone wearing orange shirts on a particular day would cause a disruption in the functioning of the school. Thereby the rights guaranteeing freedom of speech would not apply. This of course sound ridiculous an absurdity by utilizing the law in the context of an orange shirt. But would this not be the actual circumstance in a setting of perhaps a strong Irish Catholic school district and the day in question was a St. Patrick’s Day celebration? As a teacher we need to know what our mission in our life is, we also have to realize that being a teacher is a lifelong everyday experience. At a recent school state competition gathering it was observed that parents and teachers alike did not smoke. This is not to say that these people did not smoke, but they did not smoke during the gathering. There were no signs stating that smoking was prohibited but rather it was assumed or known that since students were near by that smoking should not be done. How is this relevant? It is the same as screaming fire in a crowded movie theater. While we have the freedom of speech there are certain times and places we do not say certain things. This is understood by most Americans. What is not understood however is that teachers fall into this category of appropriateness of time and character as for every aspect of their lives for as long as they are teachers.
Further this discussion opens an array of difficulties for administrators. It becomes their job to instruct and direct their staff and their students on what is appropriate and what is not. A teacher was disciplined in the Wisconsin school system for telling students that while in school it was wrong and inappropriate to swear and use otherwise offensive language. But if those students went off of school grounds this teacher stated that they would not only support their offensive language but also defend their right to use it. While the off-school swearing activity never took place the teacher was reprimanded for suggesting to the students that this was an appropriate activity. The teacher tries to explain that they were discussing the practical applications of the First Amendment.
The difficulty lies within when does the language become disruptive or interfering with the day-to-day operations of the school? Too often we will see that administrators and school officials will measure the inappropriateness by their own ideals. As an administrator this cannot be done. It may well have to be done by the district’s and the governing board’s policies but a neutrality does exist here at this level. It must be stated that the importance of a well discussed and open dialogue be administered to both the students and the teachers. Concerns then on appropriateness, acceptance of other’s ideals and critical thinking skills will be eliminated when everyone realizes that their voice does matter. There was a case in Arizona where two teachers were put on suspension for having open debates in front of the school body. These two teachers were not only showing how to run a debate but also how to express opinions without resorting to violence or other inappropriate tactics. These teachers each represented one position on the encroaching war with Iraq. Originally only the anti-war teacher was suspended but the other argued that they had engaged in this activity together in order to express points of view in a critical analysis for the students.
The Gaylord case is also a powerful statement of what it is to be a teacher. Through this case, the Pickering case, the Hazelwood (Hazelwood School District v. Kuhlmeier Supreme Court of the U.S. 484 U.S. 260, 108 S.Ct. 562) cases we see that to be a teacher can be regulated by any different amount of opinion. That anything that is said in or outside of the class can be utilized as a means to measure one’s morality. Teachers do not have to agree with their supervisors or even their districts but as observed through these law cases they must follow through with their district’s ideologies or at the very least remain neutral. Teachers are not protected by the First Amendment. This seems to be the base summation of all these cases. And this does not only mean in school but in their everyday lives as well. Can teachers be reprimanded for unsolicited emails with objectionable content? What if people within the school district parents perhaps, email a teacher a humorous story with objectionable content. Since email is now considered public record, (Archer, 2002), can and will teachers be subjected to the context of these emails? It is disturbing how far we have gone to remove the right of Freedom of Speech from teachers, the people who exert the most influence on our students have been gagged from speaking their moral imperatives.
Alexander, K. & Alexander, M. D. (2001). American Public School Law, 5th Ed. West/Thompson Learning: Belmont, CA.
Archer, J. (February 26th, 2003). E-Mail is Public Record, Districts Learn. Education Week vol 22 no 24. Educational Projects in Education: Bethesda, MD.
Manzo, K. K. (March 26th, 2003). War Lessons Call for Delicate Balance: Experts Advise Teachers to Set Own Views Aside. Education Week vol 22 no 28. Educational Projects in Education: Bethesda, MD.
Taylor, K. R. (November 2001). Remembering the Constitution: During stressful times it is important to recall the priceless rights guaranteed in the U.S. Constitution. Principal Leadership.
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