Censorship Is in Session: The Free Speech Rights of America’s Educators
By Rose Dallimore
Schools and universities throughout the United States have long been battlefields for the First Amendment, even following the seminal 1969 Tinker v. Des Moines case, which codified students’ Free Speech rights.
In 1965, 13-year-old Mary Beth Tinker — whom the Free Speech Project hosted last year — and five other students were suspended from their Iowa school after wearing black armbands to protest the Vietnam War. The students subsequently filed a First Amendment lawsuit, winning at the Supreme Court four years later in a 7-2 decision. The majority opinion, written by Justice Abe Fortas, famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Since the Tinker decision, cases involving the Free Speech rights of students have continued to emerge, from censored student newspapers to rejected graduation speeches.
Yet, in the debate over the Free Speech rights of individuals in high schools and on college campuses, one piece often goes overlooked: the rights of educators. America’s teachers are ground zero in the new wave of dialogue; understanding the delicate nature of their status is essential to enabling productive discourse. Charged with shaping the next generation, teachers work with a vulnerable and impressionable population, so concerns over manipulation or indoctrination can be valid. However, teachers are also citizens with inalienable rights to express their beliefs.
Denying teachers the right to dissent against their employers, their government, or their society is not only unconstitutional — it also reduces the value of discourse in the minds of students. If facilitators of classroom debate are not allowed to express themselves freely, students may be less likely to voice their own beliefs. An essential component of Free Speech for educators is the concept of academic freedom, which is the “idea that the free exchange of ideas on campus is essential to good education,” according to the American Federation of Teachers. Both students and teachers benefit from being allowed to express controversial viewpoints within and outside of the classroom, as long as educators are practicing academic integrity and providing context for their expression.
Educators’ expression is constitutionally protected — like any citizen’s — but their speech is certainly not insulated from the court of public opinion. Once cases of alleged censorship do make their way to the courts, educators’ legal protections come into question, often depending on two key factors: whether they were acting in their role as an instructor, and whether their employer is a public, private, or parochial institution.
The establishment clause requires a separation of church and state, and courts have thus determined that public school educators working in their professional capacity must not bring their religious biases into classrooms. For example, when a football coach at a public high school in Washington state repeatedly prayed on the field and allegedly asked players to pray with him, the school district removed him from his position, and the U.S. Court of Appeals for the 9th Circuit endorsed that decision. Private and parochial schools, conversely, are bound only by contracts with their students. Still, a significant gray area around acceptable religious language and expression often emerges.
The rules of teachers’ free speech also vary by district and situation. Courts weigh the propensity of teachers’ expression to cause harm to the learning environment with their First Amendment rights on a case-by-case basis, according to a report by the ACLU of Washington state on the rights of public school teachers.
If a teacher expresses a controversial or offensive viewpoint while acting in a professional capacity, that speech may not be protected, regardless of the school’s private or public status. Students often feel obligated to stay in class, pay attention, and absorb what instructors say; they are unlikely to walk out or to argue with their teacher, for fear of academic or disciplinary retribution.
In this way, educators have a powerful advantage over their students. The classroom dynamic may disarm students of a less-discussed implicit constitutional right: the right not to listen to speech. When people are not afforded the ability to disagree with or ignore speech, they may be considered a captive audience, in which they are forced into compelled listening and actively prevented from dissenting. While this element of the First Amendment has yet to be extensively clarified, legal scholars argue that “free listening” is an implicit dimension of the constitutional right to Free Speech.
Sometimes, offensive expression directly within the educational context threatens the stability of the learning environment, as in the case of a Middlebury chemistry professor who, in an exam question, asked students to calculate the lethal dose of gas in Nazi gas chambers. In referencing a deeply personal atrocity for many of his students, the professor sparked distraction and disgust in his classroom.
Politically charged commentary in the classroom, when students are made to feel uncomfortable or offended, such as in the case of the California teacher fired for his anti-military comments, can also be controversial. This speech may not have been directly hateful and did not incite violence, but the school district considered the resultant dynamic between students and teacher to be inappropriate.
In another case of personal political beliefs entering the classroom, an educator at the University of Southern Maine was fired for offering students credit for political lobbying. The university believed that she was abusing her professorial role to force students into political expression. In such a case, the educator did not have protected speech in the classroom to the degree that she could have outside it. These two examples highlight the complex relationship between power and Free Speech as it relates to personal views: While teachers have the right to express their beliefs, the lack of clarity in the context and the degree to which they bring personal beliefs into the classroom may lead to uncomfortable dynamics between them and their students.
The personal expression of educators, especially on the internet, is not free from scrutiny or protected expression outside the classroom either. For instance, a Florida teacher was pressured to leave her position after details surfaced about her involvement with a white nationalist podcast, although it was not entirely clear whether she brought these views into her classroom. Another case, in which a professor at California State University celebrated Barbara Bush’s death on Twitter, also drew significant publicity, but the university decided against disciplining her.
These instances reveal that questions of Free Speech are not easily answered, especially when the role of a citizen and the role of an educator involve different responsibilities. Educating both teachers and students on legal precedents of speech for educators, discussing in-class community guidelines for discourse and expression, and fostering well-intentioned debate on sensitive topics will help clarify and reinforce the Free Speech rights of America’s educators.
The balance between academic freedom and restrictions placed by administrations and civil society on protected Free Speech is delicate. The boundaries are tested by the aforementioned cases, and rightfully so. Teachers facilitate debate and raise pressing, often uncomfortable, questions about politics and society — an example of the necessity of free expression in creating a more informed, empathetic society. U.S. educators lead the Free Speech discussion in the next generation of opinionated, passionate voices and must be supported in promoting the First Amendment to the utmost of our country’s legal and social abilities.
Rose Dallimore is a sophomore in the Georgetown University School of Foreign Service, majoring in international politics, with a minor in theology. She is from New York City and Chattanooga, Tennessee. Outside of FSP, Rose is interested in creative writing and public service, diplomacy, and foreign policy.