In the second episode of our new series, Teacher Speech and the New Divide, Justin takes a look at the history of teacher’s first amendment rights, with the help of experts Brock Boone, senior staff attorney at the Southern Poverty Law Center and Sara O'Brien, researcher at Harvard Graduate School of Education. And, we follow up with educator Dakota Morrison to hear about what happened next as he took on the history of gay rights in high school social studies class in Findlay, Ohio. Special thanks to our friends at Learning for Justice, and the Justice in Schools team at the Harvard Graduate School of Education for their collaboration on this work.
In the second episode of our new series, Teacher Speech and the New Divide, Justin takes a look at the history of teacher’s first amendment rights, with the help of experts Brock Boone, senior staff attorney at the Southern Poverty Law Center and Sara O'Brien, researcher at Harvard Graduate School of Education. And, we follow up with educator Dakota Morrison to hear about what happened next as he took on the history of gay rights in high school social studies class in Findlay, Ohio.
Special thanks to our friends at Learning for Justice, and the Justice in Schools team at the Harvard Graduate School of Education for their collaboration on this work.
Resources and Links
Take our course on supporting youth activism at www.youthinfront.org
Pre-Order Justin Reich’s new book Iterate: The Secret to Innovation in Schools at www.iteratebook.com
Watch our documentary film We Have to Do Something Different
Transcript
https://teachlabpodcast.simplecast.com/episodes/teacher-speech-e2/transcript
Credits
Host Justin Reich
Produced by Aimee Corrigan and Garrett Beazley
Recorded and Mixed by Garrett Beazley
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Follow our host Justin Reich on Twitter
Sara O’Brien: I think we probably, all of us teachers, have had this experience. She probably didn't think anything of it. It was just a couple of minutes in the classroom and parents complained. She found herself pulled into the principal's office. She was disciplined at the end of the year. Her contract was not renewed, and so she ended up suing, saying that this was a violation of her First Amendment rights.
For me, this case really shows... I think it's important for teachers to think about the context that you're teaching in, right? There are definitely, I think, some places where that comment would have gone completely unremarked upon but, because there were a lot of folks who were strong supporters of the war in the town, it ended up causing her a real problem.
Justin Reich: From the MIT Studios of the Teaching Systems Lab, I'm Justin Reich, and this is TeachLab, a podcast about the art and craft of teaching.
Today, we're excited to share the second episode in our new series, Teacher Speech and the New Divide, a look into divisive concept laws, book bands, the history and legal framework of teachers' speech, and the new challenges for teachers and teaching. If you haven't listened to our first episode, we recommend you stop here, give that a listen, and then come back here for episode two.
In our last episode, we heard from Ohio teacher Dakota Morrison about his experience as a student teacher taking on the history of gay rights in a high school social studies class in Finley, Ohio.
Today, we'll pick up where we left off with Dakota's story, but before we do, in the hopes of getting a better understanding of where we are today, we'll dig down into the history of Teachers First Amendment rights with the help of a couple of experts, Brock Boone of the Southern Poverty Law Center, and Sarah O'Brien, an old friend, a researcher from Harvard Graduate School of Education. Let's jump in.
Our guest today is Sarah O'Brien from the Harvard Graduate School of Education. Sarah, thanks so much for joining us on TeachLab.
Sara O’Brien: Thank you for having me. I'm so excited to be here.
Justin Reich: Sarah, we've been working for a couple of years now together on this project called Youth in Front, which we've had TeachLab episodes about in the past. Maybe give us your summary of what the Youth in Front project is.
Sara O’Brien: Sure. The Youth in Front project has taken many forms. It started as a website that was directed to students and teachers who had questions about particularly protests in the wake of the Parkland shooting in 2018. It has evolved, and it has become an online course with Learning for Justice for teachers who want to learn how to support student activists. And it's not so much activism as part of the curriculum in terms of action civics, but it's how do teachers support students who are themselves activists, and how do we keep youth voice in front so that teachers are supporting from behind and taking a backseat to students?
Justin Reich: One of the reasons why we make these online courses is, in a lot of cases you say like, "Oh, this is something that teachers probably want to know about and will want to know about for the foreseeable future." I mean, if there's these huge waves of student activism, how, as teachers, do we respond? What's appropriate? What's professional? What's ethical? What's good for student learning? What's good for communities? All those kinds of things.
So, we put a bunch of investment into these online courses and hope that they'll last for a while. But boy, has this course been different in the sense that the world is just changing so incredibly quickly that it's really hard to keep the materials up to date and nowhere has that been more true than the law, the culture, the norms, the expectations around teachers' speech.
Sara O’Brien: There's a lot of fear and anxiety from teachers out there because parents, in particular, are really asking that the walls of the classroom be broken down, and they want to know exactly what their students are hearing every day. And there's a lot of pushback legally, a lot of pushback from parents in terms of what teachers can teach about and what they can say in their classrooms. And so, there's just a lot of uncertainty and anxiety that teachers are feeling now that even more so than they were a year ago. And certainly, when we started working on this in 2019, it feels like it was a completely different world.
Justin Reich: So, you have really had the opportunity to dig in to this material in a deep way to both review the extensive Supreme Court Circuit Court history of judicial reasoning around teachers' speech. There's just an awful lot going on here. I'm hoping what we can do in this conversation is go back into the past to get a sense of what we knew, where things seemed reasonably settled around teachers' speech in 2019, and then how they're changing so quickly. Where should we start? If I'm a teacher trying to understand what I can and can't say to my students in schools, what's the best place to begin?
Sara O’Brien: Well, I think, probably let's go back to Pickering versus Board of Education, which is a 1968 Supreme Court case, and this is still a case that judges will draw on today with what's called the Pickering test. Just a little bit of background, Marvin Pickering was a high school educator science teacher who wrote a letter to the local paper where he lived in Illinois, criticizing the way that the school board allocated funds to build two new high schools in the county. He was really frustrated to see that so much money was being spent on athletics rather than academics.
And so, he was disciplined, ultimately fired, and the school district said that the letter was detrimental to the efficient operation and administration of the schools. And Pickering ended up suing the Board of Education, saying that his letter was protected speech under the First Amendment. And actually, the Circuit Court sided with the school board, but the Supreme Court sided with Pickering actually eight to one, which feels kind of unheard of these days.
Thurgood Marshall wrote the opinion and said that because the subject of the letter was in fact a matter of public concern, Pickering had the right to speak about it as a citizen. And this will become important as we're thinking about, A, when teachers have the right to speak out? And, B, what teachers have the right to speak out about?
Justin Reich: We also talked to Brock Boone about the impact of Pickering. Brock, can you break it down for us?
Brock Boone: The US Supreme Court concluded that absent proof that the statements were falsely or recklessly made, the right to speak on issues of public importance may not furnish the basis for dismissal from public employment. So, this was good for teachers. That means that as long as the speech from teachers are not interfering with the day-to-day operations of the school, the teachers have those free speech rights. This was a landmark decision in 1968, and yeah, the teacher, Marvin Pickering was protected by the First Amendment because public school funding is a matter of legitimate public concern.
Sara O’Brien: Following that, courts have applied what they call the Pickering test, and Thurgood Marshall defined this as quote, "The problem, in any case, is to 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."
Brock Boone: So, teachers really have two roles here. On the one hand, they are employed, and they're primarily employed to say stuff. It seems pretty reasonable that if your job is to say stuff, your employer should have some oversight over what you say and when you say it and how you say it, when you sort of frame it like that, that seems pretty reasonable. And then, on the other hand, teachers are citizens too, and they have certain right.
One of the things, particularly in municipalities and towns, that people talk about on public matters are schools. Schools are, in most places, the largest budget item in any municipal budget. And so it's not like some ancillary weird thing. Teachers as citizens have kids who go to schools, all this kind of stuff. So, Thurgood Marshall is acknowledging that teachers have two simultaneous roles in society, and becoming a teacher doesn't relinquish all of your rights, your responsibilities as citizens. So, how we does Thurgood tell us to balance these things?
Sara O’Brien: Basically, just through thinking about what are the teacher's interests? What are the rights? Is this really a serious matter of public concern? Is the teacher trying to inform the public about something? Because teachers are often uniquely situated with knowledge of what's happening inside the school system.
On the other hand, what damage can be done by the teachers' speech? Can it be harming relationships with students? That's a big one the courts look at. Is it harming your relationships with your colleagues or your superiors or your parents? Is it causing significant disruption in the school day? Those are the consequences that the courts will weigh against the teacher's interest in the matter.
Brock Boone: What has happened was that is the balancing test right there, which is it a matter of public concern? And did it interfere with the day-to-day operations of the school? If the answer to the first question is yes, it's a matter of public concern. And the second question is no, it doesn't interfere with day-to-day operations, then the teacher should be protected under Pickering. Over the years, cases have narrowed and applied this test. There was a whole body of case law that's evolved over 40 years.
Sara O’Brien: While the Pickering decision is looked at as really shoring up teachers' speech rights in schools, most decisions since then have actually been sort of chipping away at teachers' speech rights in schools. And one of the more famous circuit court cases is Mayer versus Monroe, which brings up the very point that you have mentioned. And the quote from that decision, which is pretty famous, is "The school system does not regulate teachers' speech as much as it hires that speech. Expression is a teacher's stock in trade, the commodity she sells to her employer in exchange for a salary."
Justin Reich: So, who was Mayer?
Sara O’Brien: Deborah Mayer was a fifth grade teacher. This is in the early 2000s, and this is right around the time that America was getting into the Iraq War, and she was a fifth grade social studies teacher who would use the Time for Kids' magazine with her students. And one of the articles in the magazine was about protests for peace, protesting the war in Iraq, and she had a student ask her whether she would participate in such a march. And she said that when she had driven by protestors in the town who were holding signs that said "honk for peace," she in fact honked her horn.
I think we probably, all of us teachers, have had this experience. She probably didn't think anything of it. It was just a couple of minutes in the classroom and parents complained. She found herself pulled into the principal's office. She was disciplined at the end of the year. Her contract was not renewed, and so she ended up suing, saying that this was a violation of her First Amendment rights.
For me, this case really shows... I think it's important for teachers to think about the context that you're teaching in. There are definitely, I think, some places where that comment would gone completely unremarked upon but, because there were a lot of folks who were strong supporters of the war in the town, it ended up causing her a real problem.
Justin Reich: There were a lot of folks who were supporters, but it's still a tricky case. She was in class, so she's got this captive audience of students, but she's not preparing a lesson which is entitled like, Why I support the Iraq War Protests? She's actually improvisationally responding to a student's question. A student is asking a question about her personal life, and she responds with an expression of her personal beliefs. I mean, who know... It's not hard to imagine a context in which she's not even really advocating those personal beliefs. Just a kid says, what do you think about this? And she says, "Well, I'll tell you what I do."
Sara O’Brien: And it's made them more complicated because peace can mean lots of different things, right? Honk for peace, is she honking against the Iraq War? Right? That's not what she's saying. She's saying she honks for peace, and it's interesting because the school even had a peace week, like peace was one of the values of the school. And so, outside of the political context, it didn't seem to be controversial, but within this sort of new political context leading up to the Iraq wars, suddenly peace was this controversial issue.
I think Deborah Mayer's story highlights something that I'm hearing from a lot of teachers is the most anxiety-producing. It's not so much, as you say, the lesson planning. She didn't come in with a lesson on why you should honk for peace to protest the Iraq War. That was not the intention but something that was brought up by students, and she had to improvisationally respond. This is where I'm hearing the most anxiety from teachers in my work is, how do I respond to those moments when I haven't had a chance to prepare, and I worry that my speech is going to be interpreted in a way that I didn't intend?
Justin Reich: Now, you and I both taught in schools in the years following Mayer versus Monroe, which was decided in 2007, and I do not remember in me or in my colleagues, a wave of censorious fear following from this case, maybe like, "Oh, that was a weird thing to have happened." But I don't know. I don't get the sense that between 2007 and 2022, as a result of this case, there was a massive wave of self-censoring by teachers or conferences where teachers are constantly discussing how are we going to deal with the Mayer decision? That kinds of things. I don't know. What's your interpretation of the public impact of this case?
Sara O’Brien: Yeah, not at all. I was teaching at that time. I went back to school a couple of years later to do my teaching certificate, so specifically to learn how to be a classroom teacher. And I don't remember this ever being on my radar. And so, I think there is a lot more awareness now from teachers that there are restrictions on what I say in the classroom, and this need to be careful. I think it's much more on teachers' minds.
Justin Reich: So I mean, it makes me think that the law provides this amorphous context. Thurgood Marshall helps us say like, "Well, teachers are hired for their speech, and they also have rights to express as citizens, and somehow we have to balance that. And here are some ways to balance it." And at least Mayer versus Monroe, it's not a Supreme Court decision, it's a lower court decision somewhere. Is that right?
Sara O’Brien: Yeah, it's Circuit Court, but that's 15 years now that it stood with no other Circuit Courts questioning it or putting out differing opinions. So, it's a law of the land at the moment, even though it's just from the Circuit Court.
Justin Reich: Yeah, it provides a legal foundation for people who are opposed to specific acts of teachers' speech to say, "No, that is illegal," or, "That is disciplinable." We have the right to sanction that speech, including apparently terminating teachers' employment contracts.
Okay. TeachLab listeners, a quick word here from our partners. I'm so excited to tell you about our latest course, Youth in Front, which you can find at youthinfront.org. Young people have always been at the forefront of movements for justice in the United States, and we want teachers to be able to support them. Maybe not in their specific advocacy, but in being powerful advocates for whatever they believe in.
So, here at the Teaching Systems Lab, we teamed up with Learning for Justice and the Justice in Schools team at the Harvard Graduate School of Education to produce a course that helps teachers support student activism as part of civic education. You'll learn the history of student-led activism in our first self-paced course and how to support student activists. You'll get 15 professional development hours and a certificate.
The online course has three powerful interactive units. Each take about a week or two to complete. Lots of tools, actionable strategies, and it's all available to you free of charge. You can get started today by visiting youthinfront.org. Let's get back to the show.
In our last episode, we heard from Ohio teacher Dakota Morrison. He's a student teacher in Finley, Ohio. Following the Ohio model curriculum, he was teaching a unit on the gay liberation movement, stonewall gay rights, and he got into some hot water in his community. What really caught my eye about Dakota's story was the way that he's so careful about crossing every t, dotting every i. He's following Ohio's state standards. He's following the model curriculum. He gets feedback from his mentor teacher. He gets feedback from the school principal, who was a social studies teacher himself.
And still, Dakota's lesson gets him in hot water with his community. In that kind of environment, how are teachers supposed to know how to teach, what they can say, and what they can't say?
Dakota Morrison: Next morning, on March 17th, my CMT sits down with me first period, which was my planning period, and he reads me the email from the parent that was sent to every member of the Board of Education to all of the principals in the building as well as him.
The parent complaint was that we were grooming kids. She said that we were indoctrinating kids with wokeness and far left agenda. She had a picture of my chalkboard and the comments were all disgusting, calling for me to be removed, calling for my CMT to be removed, calling for SCS to be shut down and lose funding. There were good comments from queer people and people saying they supported what I did, but I was all over Facebook, I was all over this email, and we were shut down for Thursday and Friday.
After reading this email and looking at the Facebook post, my CMT turned to me and asked, "Are you okay? How do you feel?" And I remember the first thing that I said was, "What does this say to the kids?" 30% of my students are LGBT. What does this say to them? "You're inappropriate to talk about in our class. You don't belong in history. You don't have any part in what we're learning here." Like I said, I'm dumbfounded, but not surprised, but these kids deserve so much better than having their teachers silenced for talking about people like them.
So, March 25th, exactly one week from getting canceled in the classroom, I was removed from Finley by Finley Schools. Finley sent me out on leave. It made me realize that the amount of just bullshit that we see on the news of, "Oh, they told all these teachers to take down their safe space stickers," or, "Don't say gay in Florida," or all this stuff, it's much more rampant than you think. It's happening everywhere. And it happened to me in Finley, which if you remember me saying, it seemed very, very accepting walking in.
So, I'm getting thrown out of Finley and my coping mechanism is humor. I'm like, "Ugh, I got Don't Say Gay." And then, Don't Say Gay gets introduced in Ohio. I think we, as teachers and educators and professors, I think we're focusing on the wrong thing when it comes to these bills. Whenever a bill like this gets introduced, everybody flocks to the State House to stop it from passing.
But here's the thing, what is stopping individual school boards from banning this content? What is stopping Finley High School from banning LGBT topics in the classroom? What is stopping them from requiring teachers to teach that watered-down document-based question, DBQ, about Stonewall for a day and a half and then move on? Nothing.
When I've talked to parents that have an issue with what they think is being taught in classrooms, they think critical race theory is being taught because we include Malcolm X in our social studies class, when they think that we're trying to tell our kids to be gay because we include Stonewall and Marsha P. Johnson, not all our parents really consider the fact that the state tells us what we have to teach. A lot of them consider that it's literally a list that we got to get through by the end of the school year.
If I had ran into that parent in the hallway or had a parent-teacher conference, I would've pulled up that screenshot of the model curriculum and said, "Look, this is what the state of Ohio recommends. If you have an issue with it, write your congressperson, but get out of my classroom."
If you had a racist parent that said, "Oh, well, in our family we don't believe that Black people are equal, so I don't want my kid to learn about Malcolm X and Martin Luther King, Jr.," we would laugh at them. But if we have a parent that says, "Being gay is against my religion. We don't want to learn about gay people fighting for their rights," we see it as parental choice and parental rights in the classroom.
I would explain to her that everybody has a right to see themselves in history, and that including all of history is not indoctrination. It's including the full picture. I would explain to her that teachers and parents are on the same side, and we all want the same thing, which is creating a future of citizens who are educated and informed on the world around them, all of the world, not just what their parents see or what they see in their community.
Justin Reich: Dakota's experience reminds me of that very famous quote from the Mayer decision that expression is a teacher's stock in trade, that what the government does from employees who are teachers is hire their speech. But what's so frustrating in Dakota's experience, like in the Mayer case, is both educators are following a whole series of guidelines that they got from their employer. Mayer is teaching from this magazine that the school subscribes to.
Dakota is teaching from the state standards, teaching from the model curriculum, getting aligned with community norms by talking to senior teachers, senior administrators, and at the moment at which community concern is generated. And we don't know how widespread that community concern is. It could be a very small number of parents. Dakota gets penalized, and it seems like he's penalized, like Mayer was penalized, despite really making a whole bunch of efforts to do teaching that was aligned with what the district was looking for and what state law called for.
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All right, so we've talked about Pickering and we've talked about Mayer, and those two court cases really set up two of the essential principles of teachers' speech and the law, that on the one hand teachers don't check their First Amendment rights when they walk through the schoolhouse door. On the other hand, teachers' speech is hired speech, and hired speech is subject to government regulation, who are the employers of these teachers.
Let's look at a few more cases with Sarah and Brock that are really important to the legal framework of teachers' speech that have narrowed and framed these two polls over the last several decades. And then, we'll talk a little bit at the end about how we might think about what teachers can do to put themselves in the most robust place when they're talking from their experience, when they're designing their lessons, when they're interacting improvisationally with kids.
Sara O’Brien: We've got Pickering is the... as I said, the Supreme Court started by shoring up teachers' speech rights with Pickering, and then with the famous case Tinker v. Des Moines, which came out of your following. In 1969, the famous quote was, "It can hardly be argued that either students or teachers shed their constitutional rights to speech at the schoolhouse gate." That was mostly about student speech but also like a nod to teachers' speech in there.
Justin Reich: And Tinker's case where a kid wears a anti-war armband to school. It's an armband?
Sara O’Brien: Yes, yeah, to protest the Vietnam War.
Justin Reich: And the school disciplined Tinker and said, "It's disruptive." And the Supreme Court says, "Nah, an armband isn't really disruptive. People need to be able to express themselves," and this will lead to a wave of other cases. I can wear an armband, but can I wear a shirt that promotes marijuana usage? Can I have a shirt that has swear words on it? Can I... all these other kinds of... A typical Supreme Court case doesn't resolve every possible circumstance that our extraordinarily imaginative young people will come up with to test us in the decades ahead.
Sara O’Brien: Sadly, it doesn't. There's a lot of gray.
Justin Reich: Okay, so tell us about chipping away at the... The way you're framing it is that Tinker and Pickering really set up some pretty strong citizen rights of students and teachers at the schoolhouse gates, and then the courts are going to start chipping away at those rights in the decades ahead.
Sara O’Brien: They start chipping away. They have one more, Givhan versus Western Line Consolidated School District as a 1979 Supreme Court decision, which says that public employees have the same protection of freedom of speech even if they express their views about a public matter privately. This was one where this was a teacher. This was shortly after schools were being integrated, and she felt that the majority white schools in her district were receiving much better resources than the majority Black schools in her district. And she complained about this to the principal, and she was fired for this.
Her case went all the way to the Supreme Court, and they said just because she had commented on this matter of public concern, and actually this is a really fascinating case because it says that race is a matter of public concern that was very specific to it. Even though she commented in private, her speech was still protected and she couldn't be disciplined for that. So, that was another win for teachers' speech rights.
And then, we start to go into, chipping away a little bit, Connick versus Myers in 1983 said that the freedom of speech is not extent to private grievances, so this was a case with a district attorney. It's always interesting with teachers, a lot of the cases that apply to public school teachers were not in fact decided about teachers because they were decided about other public employees.
Justin Reich: So, if you're trying to understand the case law on teachers' speech, there's some things that are specific to teachers that are really about schools, but there's also a bunch of cases that are just teachers are just another public employee, like sanitation engineers or firefighters or assistant district attorneys or any of the other millions of people in the United States who are hired by the government.
Sara O’Brien: Yeah, so you get cases that came from schools, but also there's a couple district attorney's offices, sheriff's offices. So, that's part of what makes it so complicated, especially because a teacher's job is very different from an office worker in a sheriff's office, for instance, in that you do have students who are compelled to be there every day, right? You're very public facing in a way that you're not necessarily, and you're also interfacing with parents.
And as you say, you just have this sort of public role and representation that is very unique and that makes deciding, I think, some of these cases about teachers a little bit harder than it is for other public employees sometimes.
We learned in 1983 that this freedom of speech about matters of public concern does not extend to private grievances. We learned another one that was influential was another sort of landmark student speech case, which is Hazelwood versus Kuhlmeier. And this is about a school newspaper and students were disciplined for publishing inappropriate articles. One was about abortion, one was airing a family's private matters about divorce. A student had written about her parents, and the students were disciplined for this.
And in this case, it went to the Supreme Court who said that actually the students could be disciplined because the newspaper was school-sponsored speech, and the school had the right to regulate school-sponsored speech. And so, even though this is not about teachers' speech, lower courts have used this when thinking about, is the speech that teachers have made school-sponsored speech? And I think that this leads directly into one of the most important more recent decisions, which is Garcetti versus Ceballos.
Justin Reich: Brock, how would you explain Garcetti?
Brock Boone: A lot of legal experts and scholars are of the perspective that since this particular ruling, called the Garcetti case, happened in 2006, that there's a lot of questions about the extent of teachers' speech rights whenever they are speaking as a part of their official duty. So, the perspective from some attorneys would be that when you're an agent of the government, like a teacher, that's a part of your official duties, so your free speech rights are going to be scaled back tremendously.
Richard Ceballos was a Los Angeles County Deputy District Attorney. He had a search warrant affidavit that had factual inaccuracies. He investigated those factual inaccuracies. He finds out that the sheriff's department seems to have been lying or misrepresenting a lot of information in that particular affidavit. And so, he wrote a memo recommending that the case be dismissed. Ceballos's supervisor decided to go forward with the prosecution.
Ceballos then sent a memo to defense counsel, believing that he was required to do that or he would potentially violate Brady v. Maryland, which nobody needs to memorize that. But basically, Brady v. Maryland is a rule that prosecutors, when you're acting as a district attorney, you have to turn over all evidence that might exonerate the defendant, the criminal defendant.
So, this particular prosecutor is doing his job. According to him, the defense attorney calls Ceballos the good district attorney as a witness, but then Ceballos faces retaliation in his office. He was assigned to a lower position, his supervisors told him to leave, and he was denied a promotion, all because basically he was a whistleblower in doing his job of reporting these inaccuracies that were in the search warrant.
Obviously, Ceballos now is saying he has a First Amendment right to that speech, where he was basically acting as a whistleblower and doing his job. LA County defends itself by saying that the memo that Ceballos wrote was not protected speech under the First Amendment, basically that you're acting as a government employee right now, so that's government employee speech is not protected.
Sara O’Brien: It went all the way to the Supreme Court, the Circuit Court, the Ninth Circuit, had said that because he was speaking about a matter of public concern, this idea that a sheriff would be misrepresenting facts was a matter of public concern. The Ninth Circuit said, "That totally counts and you are protected by the First Amendment." But the Supreme Court reversed that decision because his speech had not been made as a private citizen but had been made as part of his official duties.
Brock Boone: So, what did the Supreme Court do? It was an extremely close decision, five to four, with Kennedy writing in the majority, they reject the assertion that the First Amendment defends one from discipline. If the government employee's speech is made within official duties. The majority wrote that employees in some cases may receive First Amendment protection for expressions made at work. However, when you're carrying out your employment responsibilities, it's not always the case.
Now, what's important to note here for teachers is that luckily, the majority that Kennedy wrote, he set aside the argument that this would adversely affect academic expression. However, as I can talk about more, the lower courts have still used the Garcetti case to say that when teachers are acting within their official duties as a teacher, their free speech rights are extremely limited.
Justin Reich: So, it's your impression that in Kennedy's writing, in the majority opinion, he was trying to set aside K-12 teachers and professors or some subset of them, but then lower courts have not honored that barrier. Is that the way to understand that?
Brock Boone: Yes, I think that's a good description. I think that that was a lot of concern from all the, I think, the amicus briefs that were coming in at the time to the Supreme Court. And everybody who was watching this case, especially First Amendment individuals, were like, "Wow, this does something pretty drastic to... It could potentially do something pretty drastic to teachers. However, there is this carve out."
But it's just a question now mostly of the lower courts honoring that carve out in Garcetti, and I think it goes back to the fact that Ceballos, this district attorney, was basically whistleblowing, which I think we have seen with Edward Snowden and others, whistleblowers are not seen in a favorable light by conservative justices and judges throughout the country. And I don't know if they ever have been. And that's exactly what was happening here, was that this district attorney was reporting government misconduct.
Justin Reich: And so, a case that was determined around whistleblowing as sort of touchstone of cultural opposition happens to have a bunch of implications for people who are not whistleblowing at all. It has implications for teachers. I imagine that conservative listeners might hear this conversation and say something like, "We hire teachers to speak to students. Doesn't the state have a legitimate interest in determining what it is they say? What are the kinds of speech laws that you think states should constitutionally be able to pass? Should reasonably be able to pass? And what is it about these laws that goes beyond the bounds of what is reasonable?"
Sara O’Brien: And so, now, in the wake of this case, teachers have to think about not just whether their speech is a matter of public concern, that's not the only threshold, but are they speaking as private citizens or are they speaking as part of their official duties as teachers? And so, that is a relatively new post-Pickering wrinkle that teachers need to be thinking about.
Justin Reich: The closer speech is to school-sponsored activities to school duties, you could sort of in the classroom, in a thing that the school is specifically paying you and asking you to do, the more it is that schools should have the capacity to regulate and discipline that speech.
The more obviously you're acting as a private citizen, you're writing a letter to the editor of a public paper on your own time or something like that, or you're clearly not in school or maybe even just clearly demarcating your speech as, "This is not a part of the lesson. I'm not saying this to you on behalf of my school district or as a teacher, but just as a private citizen. Here, you and me talking in the hallway, here's what I believe."
Sara O’Brien: Yes, that is one way to try to make yourself a little bit safer, although I will say in interesting lower court decision, even speaking in a public forum can be challenging. There's a lower court decision where a school principal spoke out at a school board meeting against plans to close down her school and was disciplined. And the Tenth Circuit found that the school did have the right to discipline her because "a superintendent should be able to expect loyalty and support, at least in public, from a high-ranking employee like a principal who is responsible for implementing his policies."
So, that was one that surprised me a little bit just because it does seem like a matter of public concern, a school closing, it is a public forum, the principal is uniquely situated to have information they want to share with the public but that was not, in fact, protected speech.
Justin Reich: And the idea there being that the duties of a principal are... The principals have responsibilities to implementing a superintendent's plan as a high-ranking manager in the way that a typical labor member, like a teacher doesn't have responsibility for executing management's overall vision. Is that what Rock versus Levinski says?
Sara O’Brien: Yeah. Presumably, it's more disruptive to the efficient running of the school system, that it was a principal speaking out than it would be if it was just a teacher. Presumably, everything is sort of murky with the court cases. It depends how it's interpreted, but that's my understanding of this one.
Justin Reich: I think that's part of what makes it hard to think about the speech because presumably, if you were Mr and Mrs. Rock, the principal, going to speak out of that school board meeting, you'd be able to look at prior court decisions and be like, "Man, there are these other educators who went and spoke out on matters of public concern and they were able to do that, and so I should also be able to do that."
And then, the Tenth Circuit comes along and goes, "Nope. Actually..." No one has ever mentioned this before in case law, but it turns out that a principal is different than a teacher. I mean, it just feels like you're walking through these potential minefields. And again, also it's what we were talking about with Deborah Mayer answering the Time for Kids question in her class.
Presumably, these things happen all the time in America's schools. There must have been a zillion teachers like Deborah Mayer who were telling their fifth grade students just something about their beliefs about the Iraq War. I mean, who couldn't? And she says what appears to be a pretty anodyne thing, and all of a sudden she's out of a job and doesn't have the legal protections that she and her lawyers believed that they had at the time.
Sara O’Brien: Yeah. Honestly, I look back at my own time in the classroom sometimes and think, "Oh, thank God." Just, "Oh, thank God this didn't happen to me," because I'm sure that I said tons of things that... because you do share about yourself. I never set out to indoctrinate kids, but you do share, as you get more comfortable with your students or you're talking about something that you're passionate about. So, I frequently am like, "Oh, thank goodness this never happened to me."
Justin Reich: What we want for teachers is for them to be able to step in the classroom and feel like they know concretely where the boundaries are for what they're being asked to do. Teachers teach the standards that they're asked to be taught. Not a hundred percent of them. There's 3.5 million teachers in the country. A few of them do all kinds of things, but lots of them stay in the lane that people set up for them. These are the standards. These are the material. This is what shows up in guidance and model curriculum and other kinds of things. Teachers are not going into classrooms hoping to rile up their community. They have scholarly disciplinary obligations, especially in social studies and English language arts, to teach hard history to get into hard topics. But I really think they're willing to do it in ways that align with clear guidelines from the state.
I think what's so frustrating about Dakota's story, again, hearkening back to Mayer's story, is it's really hard to teach if you're not sure where those boundaries are. And what we don't want is for teachers to step so far away from those boundaries that they're not taking on topics that other state laws require them to engage in. One of the ways that we, as a society, could move productively in this direction, even if we have some disagreements about what we want people to teach, is to say it should be a shared goal of everyone in the community to give teachers clear guidance about what the boundaries are on what we want them to teach.
If there are school districts that that want to say really clearly, do not teach about gay rights and gay people, maybe they can do that. But it's not just a matter of having one set of laws, which talks about divisive concepts or especially community norms. It really has to be a comprehensive effort to go back to state standards, to go back to model curriculum, to go back to all this other guidance and organize the whole package. Once people start trying to do that, I think we'll find that there's much less public support for those kinds of changes than it might appear from some of the loud voices are on these issues.
I'm Justin Reich. Thanks for listening to TeachLab, and thanks to all of our guests today, Brock Boone, Sarah O'Brien, and Dakota Morrison. In the next episode in our series on Teacher Speech and the New Divide, we'll look at some of the current cases relating to teachers' speech and divisive concept laws that are impacting educators around the country.
In the meantime, we've got some great resources out and forthcoming for educators everywhere. I've got a new book coming out in September, Iterate: The Secret to Innovation in Schools. You can learn more at iteratebook.com. You can pre-order wherever books are sold. And if you pre-order, you can submit your receipt on the website iteratebook.com, and we'll register you for a free online mini-course that I'm teaching in October of 2023.
If you'd like to sign up for Youth in Front, our course produced in collaboration with Learning for Justice on student activism, you can visit youthinfront.org. The first 150 people to finish the course are going to get some awesome swag from Learning for Justice, and you could check out our documentary film, We Have to Do Something Different, Teachers on the Journey Towards More Equitable Schools at somethingdifferentfilm.com. You can find links to all these and more in our show notes. If you like what you hear on TeachLab, be sure to leave us a rating or a review.
This episode was produced by Aimee Corrigan and Garrett Beazley. The sound was mixed by Garrett Beazley. Stay safe. Until next time.