Editorial: Teachers, students and free speech


The winter of 2005-2006 period has proved to be a disturbing time relating to teacher and student free speech.


Because parents arguably have a large interest in what is taught to their kids, balancing student and teacher speech has always been a delicate matter. It has been particularly disturbing with respect to religious and gay and lesbian issues. Over several decades, a body of case laws has developed as to how courts strike this balance. Major cases include Tinker and Pickering-Connick. Schools can generally limit teacher speech in the classroom when there are legitimate curricular or pedagogical concerns, and of course they can limit student speech that is objectively disruptive.  Off campus, schools generally may limit speech only when the speech, as it leaks back into school, is likely to cause a significant risk to the educational environment. It is clear, however, that teachers, like soldiers in the military, may not enjoy the free hand in speaking about everything that others in work that emphasizes individual content (such as computer programmers) enjoy. In many jobs with public impact, the public reputation of the person and what the person stands for can affect that person’s effectiveness, at least in dealing with external customers or making decisions about them, and teachers fall into that category.


In early 2006, there were two major cases indicative of the kinds of problems that arise. In Colorado, a social studies teacher was placed on administrative leave after comparing President Bush to Adolf Hitler, for, as the teacher claims, for Socratic reasons. In Maryland, there was a visible case where a substitute was fired for more clearly offensive comments in class. In New Jersey, a transsexual person will return to the classroom after a gender change from male to female, and some parents object that this is giving inappropriate subject matter to impressionable and immature children.  Even more so than with gay and lesbian issues, a transsexual’s speech in the classroom is so important to the individual because it is about personal identity, and this is seen as damaging to order and discipline because of the sensibilities and intellectual immaturity of others. (After all, why are they in school?) This sounds like it bears an underlying similarity to the military’s “don’t ask don’t tell.”


But more disturbing is the controversy that has been building up over both teacher and student use of the Internet.  Webpages and particularly social networking profiles (on sites like myspace.com) created by students and teachers can be viewed anywhere (although some social networking sites now offer accounts with limited public access), and even when not physically accessed in the classroom, knowledge of them can affect the school and sometimes bring schools and kids unwanted attention.  We have seen calls for student use of social networking services, even from home, to be severely restricted; likewise we are seeing a trend that many employers regard intentional unsupervised self-promotion in a public square like the World Wide Web as “unprofessional” (probably because it threatens established turf).  


For teachers, the issue is further complicated by the contingent and unpredictable needs of students. A lot of written about the shortage of teachers in academic subjects, especially math and science. A calculus teacher who has only AP classes probably doesn’t see speech as a particularly sensitive matter. A special education teacher who might have to attend to the custodial needs of a retarded student faces much more delicate situation where his publicly known sexual orientation, for example, could sometimes present a legal risk. The teaching shortage at present focuses largely on the needs of younger and disadvantaged students, particularly minorities, as can be seen from “No Child Left Behind.”  (This could change with global competition in technology, as President Bush said in his 2006 State of the Union Address.) Teaching jobs also vary in the way they expose teachers to intimate situations and in the discretion that they give teachers. In some states, substitute teachers need have no teaching credentials at all and have minimal decision making ability regarding students, and may believe that they should have more discretion outside the classroom.


A rash of media reports regarding sexual predators on the Internet (mainly in chatrooms) has also added, at least indirectly, to public concern about teacher speech. Furthermore, around the country there has been an epidemic of police arrests for teachers for inappropriate sexual advances toward students, some of them even involving female teachers and some of them involving teachers with a number of years of incident-free experience. Teaching, of course, exposes a teacher to the risk of false accusations, as in retaliation for grades. That was well demonstrated in the recent Lions Gate/Lifetime TV film “Student Seduction.”  All of this sets up a climate that would tend to encourage witch-hunts. Therefore, teachers have to be particularly careful about public statements (as on the Web), that, even if well-intended to make Socratic points, others could interpret as showing or admitting that the teacher has an unhealthful interest in adolescents, however latent.  All of this joins together in confluence some legal concepts such as libel (a teacher could sue another who made statements that threaten the teacher’s public reputation), the particularly vulnerability of teachers in defending themselves, and a notion called “rebuttable presumption for a propensity” established as a credible concept when Congress passed the 1993 “don’t ask don’t tell” law for gays in the military, but unfortunately setting examples that can be used in similar areas. In very extreme circumstances in some states, given the vague and open wording of their solicitation or inducement statutes, such speech could lead to criminal prosecution despite to objective legality of the content viewed in a usual way. It is also possible that if a teacher mentioned his blogging or personal site (e.g., "all that personal stuff") to another teacher or administrator (not necessarily a student), and if the site contained material that some people could perceive as potentially self-incriminating, the act of mentioning ("verbally") it could be included as evidence of incrimination or of enticement.


All of this has to be viewed as an unfortunate burden on academic freedom. Students should be given access to controversial information, but only after they have the cognitive and intellectual skills to process the information and come to their own conclusions. In this direction, much of what goes into a basic academic curriculum, especially mathematics (“merciless” logical thinking and proof, as in geometry), and literary context (being taught controversial literature like some Shakespeare plays [Romeo and Juliet in ninth grade] in the context of earlier times before being shown literature about very contemporary times and issues) in high school English and literature classes, as well as social studies (building through the controversies of the past like slavery before migrating to edgy problems today), all is necessary before students have the maturity to deal with a lot of things that they can find on the web, some of which could have been authored by their own teachers. The whole point of a pedagogical curriculum, approved by school boards through democratic processes (however, unfortunately, easily corrupted by local politics and special interests) is bypassed by what students may find on their own on the Web, although parents have a role in this, as does the Web community, in developing the uses of various content labels and filters. Private schools may have more freedom in expressing some ideas than public school systems.   


Teachers unfortunately, like so many other people in other fields, have to set their own priorities and take seriously that conflicts of interest are real. Teaching, particularly in lower grades and with disadvantaged students, would seem like a public service job, possibly involving some personal freedom to be of necessary service to others--all of this personal sacrifice understood in the context of larger social inequalities that contribute so much to student difficulties. As a career choice, or even as a career switch for a “retired” person, it must be approached with caution. (And it is clear to me that a retired person without previous experience in raising children, possibly because of thirty years of "exile" living in previously isolated gay "ghettos", probably should not enter teaching.)  We already know about this notion with military service.


Resources on teacher free speech


Morse v. Frederick: Supreme Court case, arguments heard 3/19/2007, "Bong Hits 4 Jesus", blogger entry here.










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©Copyright 2006 by Bill Boushka. All rights reserved, subject to fair use.