Why Do Students Have Greater Free-Speech Rights Than Teachers?



By 03/04/2011

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The Supreme Court’s near-unanimous decision allowing protests at military funerals is getting a lot of attention this week, raising questions about the limits of free speech. In the education realm, buzz is building about an Arizona charter school teacher who got fired for refusing to remove a bumper sticker from her car. (It reads, “Have you drugged your kid today?”)

From 3,000 feet away, the school’s decision to terminate her contract strikes me as highly questionable. (Supposedly some parents were upset with the anti-Ritalin, anti-anti-depressants message, which I guess they found unfair or mean.) But regardless, the bigger question is whether her free speech rights were violated. On that score, it seems to me (not a lawyer, mind you) that it’s not a hard call: if she was parking her car on school grounds, then there’s little question: she had no broad right to free speech.

The courts have long held that employers can limit the expression of their employees. That’s doubly true for schools, which can regulate the speech of their teachers, at least while they are working in their official capacity. To rule otherwise would be preposterous–to say that teachers have the right to teach whatever they’d like, for instance.

If the teacher wanted to keep the bumper sticker, all she had to do was to park her car off school grounds. But just as federal employees don’t have the right to park a car with a political bumper sticker in their office garages, neither do employees have the right to park a car with a message their employers disagree with in their employers’ lot.*

Still, the irony is this: Supreme Court decisions indicate that if this teacher had been a student, she would have indeed enjoyed the right to park her bumper-sticker-laden car on school grounds. Under the “bong hits for Jesus” ruling, schools can’t regulate the content of student expression unless it is disruptive or promotes a pro-drug-use message. (A brand-new federal court decision just found that students have a right to wear “Be happy, not gay” tee-shirts to protest gay tolerance initiatives.) Particularly since this bumper sticker offered an anti-drug use message (different drugs of course!) it seems like it would sail right through the Constitutional gauntlet. (Schools could, I suppose, outlaw all bumper stickers from cars parked in their lots, since such a policy is content-neutral.)

This crazy outcome–whereby students enjoy more rights than their teachers do–is the result of free-speech confusion going all the way back to Tinker and its declaration that students don’t abandon their rights “at the schoolhouse door.” That’s preposterous and, as this example shows, increasingly untenable–unless we want to continue making teachers second-class citizens in their own schools.

-Mike Petrilli

* Actually, I’m assuming that schools are allowed to limit teachers’ speech anywhere on school grounds, including parking lots, though I’m not totally sure any court has actually ruled on that. And federal employees’ speech rights are regulated by the Hatch Act, which wouldn’t apply here.




Comment on this article
  • james says:

    Schools are quasi-public fora, and you can’t do much to restrict speech rights there unless there is some carve-out, like being an employee. But arguably the students (disregarding those who have the option of leaving and going to a parochial or private school), who are required to attend the state-sponsored schools five days a week for most of the year, should be given even broader protections at school than even a visiting, non-employee member of the public. The argument in favor of the differential treatment may be that if the government requires you to go somewhere at a certain time, they had better not restrict your speech much.

  • Les says:

    I would be in favor restricting t-shirts such as”be happy, not gay” if the schools didn’t promote things such as accepting alternative lifestyles as an important educational programs. Too much time is spent on these issues and not the three Rs. I think this is why we are falling behind the rest of the world: kids are tolerate of the lifestyles but can’t express their tolerance in a comprehensive manner or balance their finances.

  • SHONTINAE says:

    THAT IS NOT TRUE-MY TEACHERS IN MY SCHOOL SAY HOW THEY FEEL ANYTIME THEY WANT, NO MATTER WHAT IT IS ,AND THEY DO NOT GET FOR IT, AN THEY DO NOT CARE IF IT HURTS STUDENTS FEELING OR NOT

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