Freedom to teach?
Big questions remain about academic freedom
When it comes to freedom of expression, many students believe they have it rough. Dress codes, “free speech zones” and censorship can make it difficult for students to speak their minds. But if recent controversies are any indication, teachers may have it just as bad – if not worse.
Teachers have the same First Amendment rights as anyone else — so long as they are not speaking as representatives of the school or in a school setting. But if they’re within school walls, or even just acting as an employee of the school, their speech can be – and often is – limited.
“One major difference between how a district can regulate employee speech and student speech is that regulation of student speech is, at least in part, geographic,” explained Student Press Law Center Attorney Advocate Adam Goldstein. “A student has more freedom at home than he or she does in a classroom. Control over employee speech varies with topic, not geography.”
This means that although a student can go home and shout from the rooftops that he thinks his teacher is stupid, a teacher may not be able to announce to the world that she finds her students repulsive.
A 2006 Supreme Court decision, Garcetti v. Ceballos, is at the root of most restrictions on teacher speech. Richard Ceballos was an attorney with the Los Angeles District Attorney’s office who voiced his disagreement with a warrant that had been issued, and later claimed he was retaliated against for airing his legally protected opinion.
The Supreme Court disagreed. As Justice Anthony Kennedy wrote in the majority opinion, “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.”
In other words, as Goldstein explained, “Whatever a teacher’s job duties are, a public school can regulate speech about those job duties to some extent, and fire teachers who don’t follow those regulations.”
That decision enabled an Indiana school district to fire elementary school teacher Deborah Mayer after she expressed her opposition to the war in Iraq while teaching current events. The 7th U.S. Circuit Court of Appeals found in 2007 that based on Garcetti, “[W]hatever the school board adopts as policy regarding what teachers are permitted to express in terms of their opinions on current events during the instructional period, that policy controls and there is no First Amendment right permitting teachers to do otherwise.”
However, Goldstein noted that Garcetti still leaves much room for interpretation.
“The five votes from the majority in Garcetti are all still there, but I genuinely don’t know if they would vote the same way in an educational context,” he said. “Garcetti involved an employee’s criticism of his employer in the context of his employment. I just don’t know if it was really the justices’ intent for that rule to apply to an eighth grade science class learning about evolution.”
The Internet has changed speech for both students and teachers. Several cases regarding student online speech are working their way through the court system now, and the Supreme Court is being asked to take up three of them, which involve blogs and social media.
Much as it may dismay students, teachers also have lives outside the classroom, including using social networking sites. But many have found themselves more restricted by school administrators than their students.
In March 2011, Jennifer O’Brien of Paterson, N.J., made a comment about her first-graders on her Facebook page: “I’m not a teacher – I’m a warden for future criminals!” According to Reuters, her Facebook page was only viewable by friends, but a few people forwarded the message until it reached parents’ hands. O’Brien said she was just letting off steam, but the school insisted that her comments became disruptive when they caused parents to arrive at the school demanding her removal.
O’Brien is hardly the only teacher to find herself out of a job thanks to a slip-up on a blog or social networking site. In Georgia, former Barrow County teacher Ashley Payne is suing her district for forcing her to resign over two Facebook photos of her at a dinner table with glasses of beer and wine, taken during a European vacation. A tipster sent the photos to Payne’s supervisor, who asked for her resignation, claiming that she used bad judgment in posting photos with alcohol that could be seen by students -- even though her Facebook profile was not publicly viewable and there was no evidence any student ever saw it.
Pennsylvania high school English teacher Natalie Munroe was more fortunate. She was suspended after being “outed” as the unnamed author of a blog ranting about incorrigible students — whom she referred to as “lazy whiners” destined for work as garbage collectors — and their demanding parents. After an internal investigation, Munroe was notified in August 2011 that she could return to the classroom.
According to Goldstein, teacher free speech challenges have become more difficult to win since Garcetti, because schools can argue that speech about students arises out of teachers’ “professional responsibilities.”
“[T]hese cases probably would be pretty rare, since they require speech that’s offensive enough to discipline someone, yet legitimate enough to defend,” he said.
Although schools can seek cover from the Garcetti ruling even without creating an explicit social networking policy, many schools are also creating local codes dictating how teachers can use their online accounts if they’re used to discuss or facilitate their time in class. According to the Huffington Post, school boards in at least five states have adopted or are considering adopting a set of “guidelines” for teachers using social media. The suggestions range from recommending that teachers refrain from communicating with students online to keeping their personal social media profiles “rated G.” These codes are new enough that they have yet to be tested in court, but cases challenging these guidelines may provide clarification on just how far a school’s discretion under Garcetti can go.
Of course, there are practical as well as legal considerations in a teacher’s ability to challenge the punishment of her speech. Non-tenured teachers typically work on year-to-year contracts, and a district generally is not obligated to furnish any explanation for refusing to renew a one-year contract. So a teacher may never learn that her Facebook posts cost her a job.
Colleges and universities
While teachers at public K-12 schools have limited rights, and teachers at private schools even less so, their counterparts at the college level may have more leeway when it comes to speaking their minds in class.
“Generally speaking, courts have viewed what goes on in primary and secondary classrooms as being under the total control of the school board, however lousy the school board might happen to be,” Goldstein said. “At the same time, there seems to be a bit more of an understanding at the higher education level that, if you hire a professor to talk about a topic, and the professor talks about that topic, there might well be some kind of First Amendment right to express an opinion on that topic.”
The Supreme Court hinted in the Garcetti case itself that the justices might rule differently in a case involving professors rather than prosecutors: “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests ...(.) We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
One case is already testing Garcetti’s limits in the context of higher education. In Adams v. Trustees of the University of North Carolina-Wilmington, a college professor, Michael Adams, claimed he was unfairly denied tenure because of his vocal conservative activism. When the case got to the 4th U.S. Circuit Court of Appeals in 2010, the court determined that Garcetti does not apply in the academic setting of Adams, raising the question of whether Garcetti has an exception for professors. The Supreme Court has not ruled on the issue to this point.
Anita Levy, associate secretary in the department of academic freedom, tenure, and governance at the American Association of University Professors, said her organization strongly opposes attempts to restrict professors’ speech.
“There have been calls, primarily by the right, to limit professorial speech in the classroom, and indeed in general,” Levy said. “But as far as we’re concerned, I can’t think of an instance where that would ever be appropriate.”
The AAUP has issued several statements on its website emphasizing the importance of upholding “academic freedom” for professors on college and university campuses. However, Levy noted that their statements are merely guidelines for schools. Some courts have viewed the notion of constitutionally protected academic freedom with scepticism.
The issue may be addressed soon by 9th Circuit U.S. Court of Appeals, which covers the West Coast. A Washington State University communication professor is challenging evaluations he received, claiming they were given in retaliation for his comments on how to improve journalism training at the university. A lower court sided with WSU, citing Garcetti. The professor, David Demers, has said AAUP will file a brief in his case.
Goldstein cautioned that the law may not be as accepting as organizations like the AAUP would like.
“I wouldn’t say that’s been reflected in the [case law] in any way... I think we just expect the world to work that way,” Goldstein said. “If Hypothetical State College decided to fire a professor for teaching that the world is round and is not the center of the universe, I don’t know of any First Amendment precedent that would prevent them from doing that. That said, generally speaking, an institution that exists for educational reasons tends to have policies and internal and external pressures to prevent that from happening.”
Social media policies could also be a concern for college professors. Levy said she has yet to hear of such speech codes at the university level, but that the AAUP would strenuously object to the implementation of such policies, particularly if the case law establishes classroom freedom for professors.
“I don’t think it should change all that much, although I think again there have been instances where universities have attempted to discipline faulty members for online speech,” she said. “Under our policies, I don’t think there would be all that much difference between online speech and not.”
By Emily Gerston, SPLC staff writer
reports, Winter 2011-12