No freedom of speech for high school teachers

In an attempt to engage students who are easily distracted by smart phones and the like, high school teachers understandably try to bring topics in the news into their classrooms (“ ‘Centrism Is Canceled’: High Schoolers Debate the Impeachment Inquiry,” The New York Times, Oct. 24).  But doing so is risky.

In Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, the Sixth Circuit held in 2010 that only school boards of education can determine the curriculum.  In short, districts hire teacher speech.  As a result, when teachers decide on their own to introduce topics that have not been approved, they put themselves in jeopardy. High school teachers cannot claim academic freedom, as college professors can.

This puts high school teachers in a terrible position.  They want to make what they teach relevant, but they must be careful not to go beyond what the school district that hires them allows.  Although the news story cited above involves social studies teachers, the principle extends to all subject fields.  For example, biology teachers need to be cautious in discussing pre-marital sex unless that is in the approved curriculum.

There will always be some brave teachers who decide to violate the Evans-Marshall ruling, but they better be prepared for legal pushback.

(To post a comment, click on the title of this blog.)

4 Replies to “No freedom of speech for high school teachers”

  1. Teachers are employees and, when functioning as employees, they must do what the employer directs them to do (unless it’s illegal or dangerous). It should not matter that the teachers’ employer is the govt. The govt-teacher relationship is an employer-employee relationship, not a govt-citizen relationship.

    It might be superficially appealing to allow Teacher X to encourage class discussion re impeachment where the school-board-approved curriculum does not allow that discussion. But, the problem with applying Fifth Amendment free speech protection to the teacher who is encouraging impeachment discussion is that the same protection would allow Teacher Y to encourage class discussion re pretty much anything — i.e., why gays are condemned to eternal hell or how a girl cannot get pregnant the first time she has sex.

    If the school board curriculum contains counterproductive restrictions, then the remedy is to get the school board to change the curriculum.

    (Of course, the First Amendment protection applies — or at least should apply — to teachers when they are not functioning as employees, like when they are on their own time out of the classroom.

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  2. The college professors’ academic freedom/tenure rights probably grow out of the traditional concept of the university in which the faculty were the university or were the employer — kind of like a law firm or doctor practice partnership where each professional runs his/her own business while sharing common expenses. In the purest of those arrangements, one partner cannot discipline or discharge another partner w/o disbanding the partnership; in the less pure arrangements, the majority vote of all the partners can discipline/discharge one partner. But, in either case, there is no “employer” separate from the individual or collective partners.

    Of course, the college professors’ academic freedom/tenure rights are also supported by the widely-accepted views that free speech is critically important to the development/spread of knowledge + that a core function of colleges is to develop/spread knowledge.

    My guess is that at most large universities today, professors can be disciplined/discharged if they fail to perform their contractual teaching or research obligations — that is, the professors can say/do anything they want on their own time and even in the classroom, so long as their conduct in the classroom constitutes teaching the course they are contractually bound to teach. In other words, if a professor assigned to teach Bio 101 spent the entire semester lecturing about impeachment or Antisemitism and did not teach Bio 101, he/she could be disciplined/discharged for failing to teach Bio 101.

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  3. Labor Lawyer: I think your explanation is correct. Higher education operates on an entirely different basis than secondary education. It’s unfortunate that high school teachers can’t use their judgment in deciding what to teach because curricula tend to be hidebound.

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