The Extent and Limitations of Teachers' Rights

Vol. 32 No. 2

By

Alexander Wohl, a lawyer and writer in Washington, D.C., is a former U.S. Supreme Court judicial fellow and director of public affairs of the American Federation of Teachers. The opinions expressed in this article are his own.

Making the decision to become a teacher is not easy. The job involves long hours and relatively low pay in a challenging work environment. Even those extended summer vacations—provided a second job is not necessary—are disappearing as year-round schooling is adopted by more school districts. Yet, even in the face of this adversity, teaching is one of the most rewarding careers a person may ever choose. Shaping the next generation—inspiring, stimulating, and training students to love learning—is no small matter.

Nonetheless, the freedoms that teachers have on the job—what and how they can teach, what they can do and say, what organizations they can join, even what they can wear—are under increasing scrutiny and growing challenges. Even as teachers
confront classes that are too large, a paucity of vital school supplies, and unsafe or unhealthy school buildings, they also have to contend with legal restrictions or challenges to their basic freedoms within and outside of the school environment. All of these can significantly affect their job quality and ability to teach.

The vast majority of teachers do their jobs well and without interference from administrators or outside entities. Nonetheless, a never-ending stream of legal issues concerning the rights of teachers arises in the K–12 setting. Many relate to issues of tenure or transfer from one school to another. Discipline, behavior, or discrimination issues involving teachers, students, and even parents are also common. However, in this article, I focus on activities and rights considered among the most basic for all persons, including speech, religion, and association.

The freedom to speak, to express individual religious views in or out of the classroom, or to gather together have varied over time, just as they have for society as a whole. The government, in the form of school boards or other official (and sometimes un-official) bodies, sometimes seeks to place limits on the actions of teachers and students. Students have seen their speech rights within school walls shrink dramatically since the Tinker armband case of the Vietnam era. Likewise, as the rights of teachers have become more clearly defined in the last fifty years, legal conflicts concerning limits on those rights and freedoms have also increased, adding an entirely new procedural layer to the job.

Freedom of Speech

The most recognizable type of challenge to teachers is to their freedom to speak. While America be-stows upon teachers the freedom and wisdom to educate its youth, that freedom comes with significant re-sponsibilities and some restrictions, largely because of the potential im-pact on impressionable children. Consequently, what a teacher can or should say is often closely scrutinized. Just how much scrutiny or limitation a teacher’s actions or words should receive was delineated by Justice Thurgood Marshall in Pickering v. Board of Education, 391 U.S. 563 (1968), a U.S. Supreme Court case that was among the first to find that teachers maintain some rights of expression within school walls. Justice Marshall wrote that we must “arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern, and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id . at 568.

Pickering involved a teacher who had written to the local newspaper criticizing the school board and superintendent for how they spent school funds. The Court held that the teacher had the right to express views on a matter of legitimate public concern and that criticizing school policy was not adequate grounds for dismissal. But Justice Marshall also noted that there are limits to such criticism. If, for instance, a teacher breaches a work-related confidence in his or her statements, or if the statements are merely personal attacks, they may be restricted. If the comments are sarcastic, unprofessional, or insulting, or based on a private disagreement, a teacher may be disciplined. Finally, like all determinations on the limits of speech, a teacher’s comments are subject to time, place, and manner restrictions. In each of these cases, a judge examines the consequences and the context of a teacher’s actions or words and factors them into an equation balancing public versus private interests.

Speech on behalf of the public interest can include political activity, which is at the core of the First Amendment. Teachers do not lose their rights to campaign, circulate petitions, or conduct other types of political activity. What they cannot do is indoctrinate students through their teaching or offer generally inappropriate or disruptive political comments. In short, while an election may be an appropriate subject for a class lesson, the discussion must be balanced. Thus, a South Carolina federal district court found that a substitute teacher who had worn a button with the slogan “War is Not the Answer” and was alleged to have made other negative statements during her classes regarding American military policy in Panama and Iraq was found not to be protected by the First Amendment. Calef v. Budden, 361 F. Supp. 2d 493 (S.C. 2005). The court applied the Pickering interest balancing the employee’s interest and rights as a citizen to address public policy issues against the state’s interest in promoting efficient public services. In deciding for the school system, the court explained that the Pickering test “recognizes that the government may impose restraints on the First Amendment activities of its employees that are job-related even when such restraints would be unconstitutional if applied to the public at large.” Id. at 500. Further, the fact that many students at the school were children of military personnel added to the burden on the teacher.

The most controversial and often notorious restrictions on First Amendment freedoms of teachers are those that are curriculum based and that implicate issues of academic freedom and censorship. At the core of these disputes is an interpretation of the breadth of the power we have granted teachers, particularly to shape their lessons and to evaluate and comment on materials and issues related to their teaching and curriculum. Like many constitutionally based freedoms, the independence teachers have to comment on teaching materials is not unlimited. Generally, the freedom to teach particular materials lies with the teacher, unless that material would substantially or materially interfere with school discipline. This assumes, of course, that the text or material is appropriate for the subject of a class, as well as the age of the students.

But even as teachers may comment about materials contained in the curriculum, they do not have control of that material, which belongs to school officials. One high school teacher in Virginia learned this the hard way when a court ordered him to remove pamphlets he had put outside his classroom describing a number of banned books. While designed to create discussion on an important public policy, the judge found that posting the materials was an extension of the curriculum, which, he explained, is the responsibility of school officials. Newton v. Slye, 116 F. Supp. 2d 677 (2000). Likewise, a teacher cannot disregard a text, syllabus, or curriculum.

Freedom of Religion

As the curriculum issue reveals, education remains an issue in which local, rather than national, control is paramount. Consequently, the amount of academic freedom provided to teachers varies among states and communities. This is particularly true with religious freedom issues. Like any citizen, a teacher has the right to practice his or her religion. However, this cannot include proselytizing or indoctrinating students, a ban that may also include efforts to present a religious viewpoint outside of class but still within the school day. The rationale is that a teacher’s position of authority could lead students to as-sume that the teacher’s view is en-dorsed by the school. The quick rule of thumb is that a teacher can teach about religion, and even use religious texts as sources, but cannot teach religion or use those texts as if they were the gospel.

The flip side of this coin involves teachers who are prevented from teaching standard and appropriate curriculum because of outside influences—parents, community members, or simply interest groups—that attempt to direct and dictate the curriculum in an inappropriate and ideological manner. The primary area in which this kind of subjectivity—pun intended—is being played out, and where the freedom to teach is finding a large area of overlap with Establishment Clause issues, is the question of how, or even whether, to teach evolution.

Lawyers in Harrisburg, Pennsyl-vania, currently are arguing a case that recalls the infamous Scopes “monkey” trial. The subject is the doctrine known as intelligent design and the issue facing the court is whether a school board can mandate that it be taught in biology class alongside evolution. The legal battle reveals, as a lawyer representing school board members who favor intelligent design stated, an example of “two world views that are in conflict.” It is a conflict in which teachers, as well as school board and community members, are playing a very personal role. In Maine last year, for instance, a public school social studies teacher sued the school district for violating his First Amendment rights when he sought to teach his middle-school students about non-Christian religions. In striking down a summary judgment motion, the judge found that the teacher, Mr. Cole, had created a genuine issue of fact as to whether the district was “buckling to pressure from Christian fundamentalists” and had “established a ‘pall of orthodoxy’ over his classroom” because he included discussion about Cro-Magnon man and cave paintings. Cole v. Maine School Administrative Dist. #1, 350 F. Supp. 2d 143 (2004).

Nonparticipation in religious activity also invokes the religion clauses of the First Amendment. Teachers have the freedom not to join in certain activities such as saluting the flag during the Pledge of Alle-giance if their religious beliefs prevent them from doing so. They also can take religious leave from school, if appropriate and limited. But the rights of teachers to refrain from activity they consider religiously based will find their greatest limits when they are curriculum based. Courts are likely to favor school systems and the compelling state interest to provide a sound and complete education over the individual religious interests of a teacher.

Freedom of Association

Finally, I must address briefly one right that can have a significant im-pact on all of the aforementioned: the right of association and, more specifically, the increasingly threatened right of teachers to organize and bargain collectively. While some teachers can be prohibited from some political activity because of the federal Hatch Act and similar local regulations, teachers generally are not penalized for their political activity or association, even when it involves school-related issues. Teachers nonetheless still may feel the indirect retribution of an administration unhappy with that activity. A prime protection against improper threats of this sort is a union.

Unions also provide teachers with support in more traditional areas, such as combating low compensation and eliminating unsafe working conditions that plague so many urban school districts. These issues, as well as efforts to gain increased opportunities for professional development, are regular parts of contract negotiations between unions and school boards. While this bargaining can be adversarial, it generally is not.

Indeed, school systems with some of the most successful and progressive education plans are those in which unions and administrators work together. For example, the Norfolk Public Schools recently won the largest share of the Broad Prize for Public Education, which annually honors urban districts that make significant gains in test scores, particularly among poor and minority students. The award was given largely because of the successful collaboration among teachers, principals, school district officials, and community leaders who worked to develop policies that improved student achievement.

It is important to note that while teachers enjoy a constitutional right to associate or join a union, that right does not always translate into the authority to bargain collectively. This matter is up to the states, where the laws vary significantly and the right to organize is severely and negatively impacted by the denial of the right to collectively bargain.

Keep Up the Communication

Not surprisingly, teachers have a lower level of freedom in the classroom than they do outside of it be-cause they have a greater effect on students in the classroom. While strictly limited regarding the choice of curriculum, teachers can affect the subject matter and the manner in which that subject matter is taught. The exact amount of a teacher’s influence will vary with the makeup and activism of the community. The largest controversies can generate a good deal of media attention, but their number is relatively limited. Most cases are ad-dressed in a rational and nonlitigious fashion, a fact that reaffirms the need for communication within the school community among educators, administrators, and community members and further argues for the importance of a separation of ideology from the halls of learning.

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