When Ethical Culture Fieldston, a progressive private school in New York City, fired a history teacher for criticizing Israel in school and on his Twitter account, it raised the question of whether free speech exists in non-public schools (“Fieldston, Elite Private School, Faces Backlash From Jewish Parents,” The New York Times, Jan. 10). The U.S. Supreme Court ruled in Pickering v. Board of Education in 1968 that public statements by public school teachers about issues of public importance are protected speech and teachers cannot be fired.
The situation in private and religious schools, however, is entirely different. It’s hard to understand why the Fieldston history teacher was fired for what he posted on his private Twitter account. That should be completely different from what he said in class about Israel, or in fact about any issue because teachers’ speech is hired by the district or by the school. What teachers in any school say off campus is not part of the bargain.
I realize that certain statements by teachers are bound to create a backlash by stakeholders, but part of the education process is to expose students to ideas that by their very nature make them feel uncomfortable. How they handle those situations is part of their education. I have no brief for the Fieldston teacher, but I think the school was wrong in terminating him for his private comments.
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How about if a private school receives govt $ (i.e., as a charter or via a voucher program)? Wonder if the school’s receipt of govt $ converts the school into a govt for First Amendment purposes vis-a-vis teachers’ free speech rights? Probably not — generally, the private school remains a private employer for employment law purposes. But, I bet that many courts would have a commendable gut-level desire to prevent the private school from discharging a teacher for non-school-related speech.
At the same time, on a constitutional-law analytical level, seems like there’s a decent argument that even a regular public school should be treated as a private (as opposed to govt) entity for First Amendment purposes.
In the context of student newspapers, courts generally recognize that the First Amendment applies to govt when the govt acts through its police/regulation powers and does not apply when the govt is performing a quasi-public/quasi-private function such as operating schools. Therefore, schools can censor student newspaper speech.
There is — as some level — an analytical contradiction here. If the First Amendment applies to govt action exercising police/regulation functions and not to govt action exercising quasi-public/quasi-private functions, then public schools should not be subject to First Amendment restrictions when they deal with their employees, including when they deal with their employees’ non-school-related speech.
Perhaps the court decisions holding that public schools cannot discipline a teacher for non-school-related speech rest on statutory protections (i.e., civil service laws that require due-process/just-cause for adverse action) rather than on the First Amendment. But, I think that the landmark SCt case does rely on the First Amendment.
No good answer; hard to reconcile allowing public schools to censor student newspapers but not allowing public schools to discipline teachers for non-school-related speech; either the school is a govt for First Amendment purposes or it is not.
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Labor Lawyer: Free speech really only applies to college professors. Teachers in both public and private schools are severely restricted in what they can say, not only in class but elsewhere as well. Religious school teachers are the most restricted in this regard.
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