Law & Courts

If Critical Race Theory Is Banned, Are Teachers Protected by the First Amendment?

By Mark Walsh — June 10, 2021 10 min read
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How much “academic freedom” do K-12 teachers actually have to teach what they want? How far does the First Amendment go in shielding them? And where would they stand in the face of new state laws taking aim at the use of critical race theory or the teaching of antiracist lessons?

Measures introduced in at least 20 state legislatures to rein in teaching about race and other controversial and “divisive” topics have thrust teachers into uncertainty over what they can discuss in the classroom and whether they would face discipline or other legal consequences if they overstep.

“This would make me hesitate now” on some lessons about race, said August Plock, a social studies teacher at Pflugerville High School, near Austin, Texas. “It potentially puts a chill over teachers.”

Texas is one of five states where legislators have passed proposals so far this year limiting how teachers may address race issues in the classroom, with laws already signed by governors in Idaho, Iowa, Oklahoma, and Tennessee.

These measures pose a host of legal questions. For example, John Rumel, a law professor at the University of Idaho, said the measure passed in his state raises First Amendment free speech issues.

“If I’m a K-12 teacher, I’m not sure what I can do,” said Rumel, a former general counsel to the Idaho Education Association. “Can I mention there is a rubric known as ‘critical race theory’ that exists? I‘m not espousing it. This measure would give me pause as a teacher and might chill my speech.”

While it’s too early for any of the new laws to have been challenged, the wave of legislation has teachers wondering how much leeway they have to veer from approved curricula or to address issues proscribed by state laws.

The blunt answer: While K-12 teachers retain some protections for their comments on issues of public concern, they don’t have much in the way of academic freedom to veer from the curriculum or infuse their own experiences and views into the classroom.

“I am reluctant to come to this conclusion, but in the K-12 sector, teachers do not really have any academic freedom,” said Richard Fossey, a recently retired professor who taught education law at the University of Louisiana at Lafayette and has co-written several journal articles on the topic.

Suzanne Eckes, an education professor at Indiana University-Bloomington who has also written about the issue, said that under a series of decisions from the U.S. Supreme Court and the federal courts of appeals, K-12 teachers do not have the type of academic freedom that courts have recognized for college professors.

“You don’t have a lot of leeway,” Eckes said she tells teachers. “If a teacher called me and said, ‘I want to teach the 1619 Project or about the Tulsa race massacre but my supervisor has advised me not to,’ I would sympathize with them, but would add that they could get in trouble for teaching those concepts.”

The laws passed or proposed so far generally prohibit schools from teaching that one race or sex is inherently superior, that any individual is consciously or unconsciously racist or sexist because of their race or sex, and that anyone should feel discomfort or guilt because of their race or sex.

Some adopted or pending measures specifically mention critical race theory, a decades-old academic framework that examines how racism has shaped the U.S. legal system and has become the crux of controversies across the country.

I am reluctant to come to this conclusion, but in the K-12 sector, teachers do not really have any academic freedom.

At least two proposals specifically singled out as a prohibited topic for the schools the 1619 Project, a long-term reporting effort by The New York Times that has been turned into a curriculum centered around the year that enslaved Africans were first brought to colonial America.

But it remains unclear to what degree the various pieces of legislation address specifics of what’s actually being taught in the nation’s schools.

“Very few school districts will say out loud, ‘We’re adopting critical race theory,’” said Daniel R. Suhr, a lawyer with the Chicago-based Liberty Justice Center, which has sued a Nevada charter school and a Virginia school district over some of their anti-racism curricula or policies. “They might say, ‘We’re embracing equity.’”

Critics often cite critical race theory as the basis for many diversity and inclusion efforts, regardless of how much the framework has actually informed those programs.

What the Supreme Court has said about ‘academic freedom,’ employee free speech

Many teachers, of course, freely express their opinions in their classrooms and make instructional decisions that veer from the approved curriculum.

“I was a high school teacher, and I was always giving my political opinion and nothing ever happened to me,” said Eckes, the Indiana University education professor. But that was due more to the grace of school administrators than any legal protections.

The U.S. Supreme Court has recognized academic freedom for professors and institutions at the higher education level, with a 1967 decision calling the college classroom “the marketplace of ideas.”

When it comes to K-12 teachers, the high court has made some lofty pronouncements, such as its language in the landmark Tinker v. Des Moines Independent Community School District decision on student speech, which declared that neither “students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Education law scholars also can point to a handful of cases in which K-12 teachers did win court rulings in support of their classroom expression. In the 1960s and 1970s, teachers won cases after being fired for uses of the F-word, for using a controversial role-playing method to teach about Reconstruction, and for distributing surveys to students about sex, drugs, and euthanasia.

But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that public employees generally do not have First Amendment protection for their on-the-job speech.

In a friend-of-the-court brief submitted in the Garcetti case, the National Education Association had argued that “to teach is to communicate—often on matters of the greatest public importance and controversy.” A decision that failed to recognize First Amendment protection for job-related speech “would have a devastating impact on teachers,” the union said in its brief.

Garcetti involved an employee of a prosecutor’s office. In his majority opinion, Justice Anthony M. Kennedy said the court was not deciding whether its analysis “would apply in the same manner to a case involving speech related to scholarship or teaching.” The line was perhaps a response to a dissent by Justice David H. Souter, who expressed concerns about the effect of the majority’s principle on academic freedom in public colleges and universities.

Since Garcetti, numerous courts have ruled that the potential exception for “scholarship and teaching” did not apply to K-12 educators.

In a 2007 case, a federal appeals court upheld the non-renewal of an Indiana middle school teacher who had expressed her opposition to the U.S. war in Iraq to her students, which had led to parent complaints.

Another federal appeals court, in a 2016 decision, upheld the discipline of a Chicago 6th grade teacher whose principal overheard him teaching his students not to use the N-word. The teacher was suspended for five days for using verbally abusive language in front of students, even though the teacher was trying to explain why the word was offensive.

In a 2010 decision, a federal appeals court upheld the non-renewal of an Ohio high school teacher who had centered a lesson around banned books that included some selections parents considered inappropriate. The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, analyzed the competing interests at stake in that case, Evans-Marshall v. Tipp City Exempted Village School District.

“On the one side, doesn’t a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against?” the court said. “On the other side, doesn’t a school board have the final say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.”

The appeals court sided with the school district, holding that Garcetti applied because the teacher was acting pursuant to her job duties and “the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools.”

The First Amendment doesn’t necessarily give subordinate employees the right to do something the supervisor has told him not to do.

The 6th Circuit court recently appeared to reaffirm the distinction on academic freedom between college professors and K-12 teachers. A 6th Circuit panel ruled in March that an Ohio college professor who refused to use the preferred pronouns of a transgender student because of the professor’s religious beliefs was protected by academic freedom.

The college had “punished a professor for his speech on a hotly contested issue,” in violation of the First Amendment, the court held. The court said in a footnote that its 2010 ruling in Evans-Marshall was “limited to schoolteachers.”

Fossey, the University of Louisiana professor, said the Supreme Court’s Garcetti decision “has been really hostile to the view that K-12 teachers have any control over the curriculum or even their teaching style.”

Stuart Stuller, a veteran Colorado attorney representing school boards, said the rationale for districts’ supervision of teachers’ on-the-job speech is that “when the teacher is standing in front of the classroom, that teacher is a representative of the state.”

“The First Amendment doesn’t necessarily give subordinate employees the right to do something the supervisor has told him not to do,” said Stuller, who is nonetheless sympathetic to academic freedom concerns of teachers and once wrote a law journal article on the subject.

Teachers and other public school personnel still have First Amendment protections for speaking out on matters of public concern outside of their job duties, even when those matters involve the operations of their employer.

That was underscored by another controversy this month in the 82,000-student Loudoun County, Va., district outside Washington, D.C. A state judge ordered the reinstatement of an elementary school teacher who was suspended after speaking up at a school board meeting against a proposed gender-equity policy that would include requiring teachers to address transgender students by names and pronouns used by those students. The district received several complaints about the teacher’s public comments and placed him on administrative leave because of the “disruptive impact” his remarks had on his school, court papers say.

The state judge on June 8 issued a temporary injunction in favor of the teacher after analyzing the case under Pickering v. Board of Education of Township High School District 205, a 1968 Supreme Court decision that a teacher’s speech on a matter of public concern is protected under the First Amendment if it outweighs the employer’s interests in workplace efficiency and lack of disruption.

A ruling on a law barring ‘ethnic studies’ programs may be relevant

Alice O’Brien, the general counsel of NEA, said the new state laws limiting what teachers and schools may say about racism and other matters are certain to be challenged in court, though likely not on the grounds of teacher academic freedom.

“These are situations where the state legislature is prohibiting the instruction of certain concepts in the schools,” she said. “These laws are aimed at instruction across a state, and that is a different context than that of an individual teacher right.”

Such challenges will likely be based on the 14th Amendment’s equal-protection clause because the measures were enacted with racial animus, O’Brien said. And they could be subject to challenge based on the First Amendment right of students to receive information, she said.

O’Brien pointed to rulings that resulted in the invalidation of an Arizona law that barred public schools from instituting an “ethnic studies” curriculum, such as by holding classes or programs that promoted resentment toward a race or class of people, that were designed primarily for pupils of a particular ethnic group, or that advocated ethnic solidarity instead of treating students as individuals.

The law was pushed for by a Republican state superintendent of public education and was targeted at a Mexican American Studies program in the Tucson school district and challenged in court.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, in 2015 held that the law was not unconstitutional on its face, but allowed the challenge to proceed based on evidence of discriminatory purpose in the enactment and enforcement of the law. A federal district judge in 2017 struck down the Arizona law on equal protection and First Amendment grounds.

“These statutes want schools to impart a particular view of America,” said O’Brien. “They are intended, at the very least, to chill speech. And they seem to be having that impact.”

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