Know Your Rights

Does the First Amendment protect what teachers say and do inside the classroom?

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Diane Murray, a tenured teacher in the Pittsburgh public schools, found a classroom management technique that worked for her. Known as Learnball, the technique involves dividing the class into teams, having students elect team leaders and an assistant teacher, and giving students responsibility for establishing class rules and grading exercises. Murray used the approach for 10 years and promoted it to other teachers outside the classroom.

Her school’s administration, however, did not approve of Learnball. Although there was no specific policy concerning classroom management techniques, school officials admonished her for her advocacy and use of the program.

She requested a transfer to another school. When she started at the new school, the principal informed her that she could not use Learnball. Murray filed a motion in federal court for a preliminary injunction against his directive, contending that she was entitled, under the First Amendment, to academic freedom that encompassed the right to use Learnball in the classroom. The federal trial court dismissed Murray’s motion, and she appealed.

Citing a host of precedents, the 3rd U.S. Circuit Court of Appeals concluded that a teacher’s First Amendment right of academic freedom does not extend to choosing his or her own classroom methods, whether for management or subject-matter teaching, in contravention of school or district policy or dictates.

While the First Amendment may protect what a teacher says outside the classroom, it does little to shelter what is done inside a classroom. And, for the most part, a tenured teacher has no more protection than a nontenured teacher; in most states, tenure merely provides “due process,” a guarantee that a teacher will get adequate notice and a fair hearing. Just causes for dismissal—which are usually set by state statutes—often include immorality, incompetence, and insubordination.

The upshot is that academic freedom is a narrow umbrella, offering reform-minded teachers little legal protection for curricular innovations. Teachers who have come to expect to be treated as professionals—which includes having control over techniques in their classroom—should be aware that unless academic freedom is specifically spelled out in a contract or policy, the buck still stops with administrators.

So rather than rely on constitutional rights, teachers who want to try something new in class should work diplomatically with the school or try to get academic freedom written into their contract or school board policy.

Tim Kirkland, like Murray, learned the limitations of academic freedom the hard way. When Kirkland was a second-year history teacher in the Northside (Texas) Independent School District, his administration gave him and the other teachers a supplemental reading list for their history classes, along with a set of guidelines for amending the list. The list was developed after holding public hearings to solicit input from parents, teachers, and other interested parties. The guidelines allowed for the use of other supplementary reading materials if the teacher obtained approval.

Without attending the hearings or obtaining approval, Kirkland offered his world history students his own reading list for extra credit. Almost all of the 47 books on his list were novels, and most were already recommended reading for the English courses and available in the school’s library.

During the second semester, the district told him that it would not be renewing his contract because of his use of an unapproved reading list, poor supervision of one particular class, substandard teaching evaluations, and poor interactions with parents, students, and fellow teachers.

Kirkland filed suit in federal court, alleging that the latter reasons were padding for the real reason: his reading list. The district, he argued, by censoring his reading list, was violating his academic freedom. The jury agreed and ordered the district to reinstate Kirkland and pay him $50,000 in damages. The district filed an appeal with the 5th U.S. Circuit Court of Appeals.

In Kirkland vs. Northside Independent School District, the appellate court reversed the jury’s ruling. It relied on a three-step test set out by the U.S. Supreme Court in 1977: First, a teacher must demonstrate to the court that the expression in question is protected. Then, he or she must prove that the expression was a major reason for the school’s action against the teacher. Finally, the teacher must show that the district would not have disciplined him or her if it were not for the offending expression.

The first step, determining whether the expression is protected, consists of two parts. The teacher, the high court said, must prove that the expression was a “matter of public concern.” A rough rule of thumb for testing whether an issue is a matter of public concern is to ask whether a local newspaper would find it worthy of publishing in its pages. Conflict over teaching a unit on Chaucer, for example, would probably not be considered newsworthy in many communities; a unit on condoms might. Where, when, and how something is said can also affect whether or not a journalist would take note. A teacher jousting with a principal over a teaching method during a school board meeting, for instance, may be more newsworthy than a teacher who quietly makes changes in class.

Once the expression is deemed a matter of public concern, the high court said, courts must balance “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the [school district], as an employer, in promoting the efficiency of the public services that it performs through its employees.” In short, if the teacher’s expression rocks the boat too much, impairing a school’s efficient progress, the teacher is sunk.

Negotiating among these criteria can be tricky. Quiet innovation may be less newsworthy than a more vocal conflict between teacher and principal. But if a teacher makes too much noise, he or she may be deemed to be rocking the boat. A more effective strategy might be to give a presentation during a board of education meeting or to write a letter to the editor of a local paper.

If a teacher passes this first two-pronged test, the Supreme Court asks if this protected expression was a substantial or motivating reason for the school district’s action against the teacher. If so, the court must decide whether the district would have taken the action against the teacher regardless of the protected expression.

The 5th Circuit, applying the Supreme Court’s standard, pointed out that Kirkland failed the first test: He never spoke out as a citizen, at the public meetings or otherwise, about the reading list and did not even submit the list through the available channel for possible approval.

The circuit court cited some of the older cases that discussed academic freedom, concluding that “the doctrine has never conferred upon teachers the control of public school curricula.” The decision also referred to the U.S. Supreme Court’s opinion in Hazelwood School District vs. Kuhlmeier, a student censorship case. In its discussion of that case, the high court mentioned that “school officials may impose reasonable restriction on the speech of students, teachers, and other members of the school community.” Pointing to the ultimate authority of the school board to make curricular decisions, the court found the district’s action in the Kirkland case to be reasonable.

In recent years, the federal courts have considered a wide range of First Amendment claims by teachers. One involved a math teacher who argued that his school district had fired him, in large part, because he gave a high proportion of his students Fs and refused to change his instructional methods. The court did not rule in his favor.

The rationales employed by the courts in such cases have varied, including the three-step test and the Hazelwood deference-to-the-district doctrine, but the results have been fairly consistent: The teachers lost most of these constitutional cases.

Thus, for the foreseeable future, teachers are advised to think at least twice before “speaking out” in the classroom in the form of innovative methods or controversial content based on the purported protection of First Amendment academic freedom. Regardless of whether the teacher is nontenured or tenured and the adverse action a directive or a dismissal, academic freedom provides more potent protection for what a teacher says as a private citizen about the schools than for what the teacher does in the classroom, where the school board is largely in control of the curriculum.

It is more advisable for teachers to take an effective collective stand and solidly build academic freedom into school district policy or, where applicable, collective bargaining agreements. The contract could state, for instance, that the administration will not interfere with a teacher’s method unless it is clearly unrelated to curriculum or professional opinion is strongly against it.

Another strategy would be to develop a good working relationship with administrators, marked by collegial communication and shared decision-making. Otherwise, consult with a knowledgeable lawyer before “making a federal case” of your professional choice of methods or subject matter.

Vol. 04, Issue 07, Pages 16-17

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