Teachers and speech

The San Francisco Chronicle had an article today about Deborah Mayer who learned that free speech does not extend to passing your political viewpoints on to your students:

When one of Deborah Mayer’s elementary school students asked her on the eve of the Iraq war whether she would ever take part in a peace march, the veteran teacher recalls answering, “I honk for peace.”

Soon afterward, Mayer lost her job and her home in Indiana. She was out of work for nearly three years. And when she complained to federal courts that her free-speech rights had been violated, the courts replied, essentially, that as a public school teacher she didn’t have any.

As a federal appeals court in Chicago put it in January, a teacher’s speech is “the commodity she sells to an employer in exchange for her salary.” The Bloomington, Ind., school district had just as much right to fire Mayer, the court said, as it would have if she were a creationist who refused to teach evolution.

The ruling was legally significant. Eight months earlier, the U.S. Supreme Court had decided in a case involving the Los Angeles district attorney’s office that government employees were not protected by the First Amendment when they faced discipline for speaking at work about controversies related to their jobs. The Chicago appeals court was the first to apply the same rationale to the classroom, an issue that the Supreme Court expressly left unresolved.

But legal analysts said the Mayer ruling was probably less important as a precedent than as a stark reminder that the law provides little protection for schoolteachers who express their beliefs.

As far as the courts are concerned, “public education is inherently a situation where the government is the speaker, and … its employees are the mouthpieces of the government,” said Vikram Amar, a professor at UC’s Hastings College of the Law in San Francisco. Whatever academic freedom exists for college teachers is “much, much less” in public schools, he said.

The article goes on and on in this vein, but I wonder if any of you noticed what I noticed? The article implies that the loss of free speech in the workplace is the same as the loss of free speech entirely. Note this sentence construction: “And when she complained to federal courts that her free-speech rights had been violated, the courts replied, essentially, that as a public school teacher she didn’t have any.” That’s not true. What the Court said is that “as a public school teacher she didn’t have any rights to bring her politics to the workplace.” That’s entirely different, of course, from the implication that the government is following her around, Stasi-style, monitoring her speech wherever she goes.

It’s only later in the article that we learn that this whole case was was about academic speech — namely, speech allowed in the classroom. In that regard, Vikram Amar, the UC Hastings professor, makes the correct point, saying “public education is inherently a situation where the government is the speaker, and … its employees are the mouthpieces of the government.”

The other thing the article glosses over is that this mouthpiece concept is true for any employer. That is, employers are always free to limit their employees’ speeches (although they can’t force illegal speeches onto their employees). A bank can swiftly fire a bank clerk who greets a customer by saying, “Mrs. Smith, you look like a stupid conservative today.” A grocery check-out person won’t last a minute if he opines to the customer, “Oh, you’re buying matzoh. You must support the evil Zionist entity.” In a market economy, employers can limit speech.

I recognize, of course, that the government is a different type of employer, because when a private business limits speech, that’s an economy based decision, whereas government limitations on speech inherently spill over into censorship. Nevertheless, in the education field, the consumers — meaning the taxpaying members of the public — are buying into a set educational agenda that does not include indoctrination into any single teacher’s political convictions. This is especially true given that kids are an unusual audience. They are completely trapped, since they can’t walk out on or challenge a teacher’s speech, and they are unusually vulnerable, in that they lack the mental toughness, analytical ability, and fund of knowledge that would enable an older person to challenge the teacher’s ideas.

Nevertheless, Mayer is clearly about to become (or has already become) a cause celebre on the left because the judicial system supported the parents’ understanding that children are to be taught the curriculum and not to become a captive audience to any given teacher’s political ideology.

UPDATE: DQ and I were talking about this post, and he felt it would matter a great deal whether the teacher was teaching the class at the time or engaged in private conversation with the student who had broached the subject. He felt that, in the latter case, the teacher ought to be able to state her personal opinion. We checked the decision, though, and found out that the teacher was actually teaching at the time:

Deborah Mayer worked for one year as a probationary elementary-school teacher in Monroe County, Indiana. When the school district did not renew her contract for a second year, Mayer filed this suit under 42 U.S.C. § 1983, maintaining that the school system let her go because she took a political stance during a current-events session in her class, thus violating the first amendment. The district court granted summary judgment to the defendants, so we must accept Mayer’s version of events-which is that she answered a pupil’s question about whether she participated in political demonstrations by saying that, when she passed a demonstration against this nation’s military operations in Iraq and saw a placard saying “Honk for Peace”, she honked her car’s horn to show support for the demonstrators. Some parents complained, and the school’s principal told all teachers not to take sides in any political controversy. Mayer believes that this incident led the school system to dismiss her; we must assume that this is so.

Mayer v. Monroe County Community School Corp., 474 F.3d 477, 478 (7th Cir. 2007).

Under that factual scenario, DQ concluded that the Court’s holding was the correct one.  Indeed, the Court’s analysis is a pretty good one, and shows that this case does not express any new ideas, but simply follows along logically with old ones:

Whether teachers in primary and secondary schools have a constitutional right to determine what they say in class is not a novel question in this circuit. We held in Webster v. New Lenox School District No. 122, 917 F.2d 1004 (7th Cir.1990), that public-school teachers must hew to the approach prescribed by principals (and others higher up in the chain of authority). Ray Webster wanted to teach his social-studies class that the world is much younger than the four-billion-year age given in the textbook the class was using; he proposed that the pupils consider the possibility of divine creation as an alternative to the scientific understanding. We held that Webster did not have a constitutional right to introduce his own views on the subject but must stick to the prescribed curriculum-not only the prescribed subject matter, but also the prescribed perspective on that subject matter. Following Palmer v. Board of Education, 603 F.2d 1271 (7th Cir.1979), we held in Webster that “those authorities charged by state law with curriculum development [may] require the obedience of subordinate employees, including the classroom teacher.” 917 F.2d at 1007. See also Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir.1998).

This is so in part because 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. A teacher hired to lead a social-studies class can’t use it as a platform for a revisionist perspective that Benedict Arnold wasn’t really a traitor, when the approved program calls him one; a high-school teacher hired to explicate Moby-Dick in a literature class can’t use Cry, The Beloved Country instead, even if Paton’s book better suits the instructor’s style and point of view; a math teacher can’t decide that calculus is more important than trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz.

Id at 479.

The Court also makes the same point I made, which is that students are a captive audience.  (Although the Court does not mention, and I forgot to mention that, not only are students captive, their all-important grades are dependent on a given teacher’s goodwill):

Beyond the fact that teachers hire out their own speech and must provide the service for which employers are willing to pay-which makes this an easier case for the employer than Garcetti, where speech was not what the employee was being paid to create-is the fact that the pupils are a captive audience. Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling. Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives. 

Id.

The Court is careful to note that it’s ruling is not intended to mean that children may hear only one side of any issue.  (And you all know that I agree with that, believing that children should get a fully rounded approach to any issue.)  To this end, the Court said:

Majority rule about what subjects and viewpoints will be expressed in the classroom has the potential to turn into indoctrination; elected school boards are tempted to support majority positions about religious or patriotic subjects especially. But if indoctrination is likely, the power should be reposed in someone the people can vote out of office, rather than tenured teachers. At least the board’s views can be debated openly, and the people may choose to elect persons committed to neutrality on contentious issues. That is the path Monroe County has chosen; Mayer was told that she could teach the controversy about policy toward Iraq, drawing out arguments from all perspectives, as long as she kept her opinions to herself. The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.

Id at 479-480.

Overall, I think it’s a very intelligently decided decision, that appropriate balances speech, education and indoctrination.  What do you think?