How Free is Your Speech if You Are an Instructor at a Publicly Financed School?

According to the ACLU website, if you are a public school teacher your free speech latitude depends on two things:

  • where you are expressing yourself (in or out of the classroom); and
  • whether you teach minors or adults.

Here’s the ACLU:

Teachers do not forfeit the right to comment publicly on matters of public importance simply because they accept a public school teaching position. Teachers cannot be fired or disciplined for statements about matters of public importance unless it can be demonstrated that the teacher’s speech created a substantial adverse impact on school functioning. . . .

A teacher appears to speak for the school district when he or she teaches, so the district administration has a strong interest in determining the content of the message its teachers will deliver. While courts sometimes protect the academic freedom of college and university professors to pursue novel teaching methods and curriculum, these principles do not apply with equal force to K-12 teachers.

And I also notice this at Academe Online:

[T]he Supreme Court’s 1967 decision in Keyishian v. Board of Regents . . . overturned New York City’s requirement that teachers sign an oath that they were not Communists.

“Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned,” the Keyishian decision said. “That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

The pall of orthodoxy over the classroom. That phrase suggests to me that, on the matter of censorship v. a teacher’s right to free speech, courts will tend to side with the teacher so long as there is no “substantial or adverse impact” on the school’s functioning or delivery of its otherwise officially sanctioned and “neutral” classroom curriculum.

Keyishian v. Board of Regents would also seem to imply that if your employer cannot make you certify to students that you are not a communist, that means that if a student asks you whether you are a Republican, a Democrat, a libertarian, a socialists, a gay person, an atheist, an Evangelical Christians, an evolutionist, or a creationist you can be open about who you are and what you think (personally). Even as you deliver the employer’s curriculum, you can give people your honesty as an individual human being. 

And so it seems to me that it is best not  to err on the side of caution—that erring on the side of caution gives energy to censorship. Who, afterall, wants to live in a society—whether you are a parent or student—where citizens feel themselves to be under “the pall of orthodoxy” and thus not free to be honest about their genuine thoughts and identities?

I share 20th century journalist I.F. Stone’s belief that:

[N]o society is good, whatever its intentions, whatever its utopian and liberationist claims, if the men and women who live in it are not free to speak their minds.

If you share with me the idea that freedom of expression is a transcendent value—a matter of conscience—then I think it is worth risking something over. Maybe even a job (or the risk of a court battle over your job).

Now make your choice.

In the documentary, William Kunstler: Disturbing the Universe, there is an interesting segment in which Michelangelo’s David is discussed. Perhaps you’ve never noticed, but Michelangelo portrays David at a moment of decision—of deliberation. Shall he take on Goliath, or walk away? In other words, Michelangelo captures David contemplating a moment of “fight or flight.”

Whether you are a teacher or a student, whenever you are confronted with a choice to speak (or to fall silent before the collective pall of orthodoxy), perhaps it might be good to think of Michelangelo’s David.

What would Michelangelo’s David do?

The health and strength of a society—as in any relationship among people—is the ability to hear things from one another. You keep American society healthy and strong when you speak your mind—when you give others your thought.

That includes teachers and students.

About Santi Tafarella

I teach writing and literature at Antelope Valley College in California.
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