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.