Controversial Topics and Limits on Teacher Free Speech

Controversial Topics and Limits on Teacher Free Speech

In their paper, “Broaching the subject: Developing law-based principles for teacher free speech in the classroom,” researchers Bruce Maxwell et al. explain that for many teachers, the decision to discuss controversial topics in class is both an important and fraught decision. On the one hand, engaging with controversial issues is crucial for the development of students’ critical thinking skills and allows them to demonstrate democratic values like tolerance, recognition of reasonable disagreement, and respectful political engagement. On the other hand, many teachers will avoid controversial political matters so not to create an uncomfortable classroom environment. There is a worry that students’ lack of maturity to handle some topics may result in insult or shouting matches; there is a worry that some students may voice socially unacceptable views that might upset other students; there is a worry that the teacher is unable to facilitate such heavy discussions; there is a worry that workplace sanctions will occur as a result of engaging with controversial topics (196-197).

Maxwell et al. lay out current limits on free speech in the classroom and provide guidelines for possibilities of teachers’ discretion to engage with controversial issues. They make clear that this by no means guarantees legal protection in the case of a conflict over a teacher’s use of speech in the classroom. Their work, however, may help teachers and administrators have a common point of reference about what teachers have the right to say in class. Moreover, teachers may feel more comfortable facilitating controversial topics if they better understand and follow the presented guidelines (197).

The Take-Away

“U.S. teachers have essentially no legal recourse in the event that an employer directs them to avoid discussing certain topics in class or terminate an activity deemed inappropriate” (198).

In both Canada and the United States, court case rulings have upheld teachers’ constitutional right to free speech (curricular free speech), but have also imposed limits on exercising that right. The authors note that the Canadian legal system allows teachers to exercise some free speech even when the administration disapproves. In the United States, per the case Mayer v. Monroe Country (2007), curricular speech is regarded as “hired speech” and is not protected by the First Amendment. Teachers are considered relayers of curriculum. The authors state that for now, “U.S. teachers have essentially no legal recourse in the event that an employer directs them to avoid discussing certain topics in class or terminate an activity deemed inappropriate” (198).

Reviewing decades of U.S. and Canadian cases on school teacher’s free speech, the authors conclude that judges tend to return to four key areas when considering whether a restriction on a teachers’ right to free speech in the classroom is justified.

1. The State’s Right to Establish the Curriculum (pg 198)

  • Teacher speech may be limited if it is unrelated to state sanctioned curriculum.
  • In the case of Webster vs New Lenox School District (1990), the teacher (Webster) argued that he could use his academic freedom to teach creationism because he was also teaching the state’s set curriculum on evolution. The court ruled against him, arguing that there is a need to “protect children from teachers’ idiosyncratic perspectives” (199). 

2. Protecting Students from “Inappropriate” Speech

  • Students constitute a captive audience, meaning that they cannot simply leave the room if they are offended by the teacher’s speech. Moreover, the young ages and relative intellectual immaturity of students makes them psychologically vulnerable.

“Teacher speech can be considered inappropriate when it appears to involve the teacher abusing their position of authority to promote their own personal standpoint on a controversial issue” (199).

  • Judges do consider relevant contextual factors, including the teacher’s intentions in using provocative or controversial material. Of particular concern is if and how that material connects to the state’s curriculum.

3. Maintaining a School Environment Conducive of Learning

    • In the case of Tinker (1969), the U.S. Supreme Court concluded that in schools “the right to free speech could be limited if its exercise is shown to case a material and substantial disruption to the normal operations of the school” (199).
  • Needs to be proof that the teacher’s speech in fact interfered with the school’s ability to maintain a learning environment. In other words, there needs to be proof of disruption.

4. Public Confidence

    • Canadian rulings suggest that teachers’ free speech is not protected if a teacher’s conduct involves a loss of public confidence in the teacher’s ability to perform his or her job (200).
  • In the case of Ross v. New Brunswick Board of Education (1996), the Supreme Court of Canada upheld the dismissal of Malcolm Ross, a high school math teacher who publicly and repeatedly expressed anti-Semitic views. While there was no in-class offense, he had created a “poisoned” educational setting that resulted in a loss of public confidence in his ability to carry out his duties as a public school teacher.

Maxwell, McDonough, and Waddington finish their paper by offering four guiding principles for teachers when exercising curricular free speech, especially when teachers engage with controversial topics.

#1. Curricular Alignment (pg 200)

  • It must be possible to show that teacher’s was intentionally chosen to further a pedagogical purpose explicitly sanctioned by the curriculum.

#2. Even-handedness (200)

  • In order to maintain professionalism and public trust, teachers must not been seen as using their position of authority to promote their own personal views on contested or sensitive issues.

#3. Avoiding Foreseeably Inflammatory Speech (201)

    • In order to maintain an environment of learning,  teachers should avoid making comments or using material that could cause a major disruption to the normal operation of the school.
    • It is important to distinguish between what is controversial and what is truly disruptive. There is a difference between “ruffling a couple feathers” and creating a full-blown crisis in the school and community.
  • Consider the case of a Montreal school teacher who showed a video of a victim being stabbed and dismembered. While this video was widely discussed in news at the time (2012), the showing of the video in class caused public outrage (pg 201).

#4. Age Appropriateness

    • The term “appropriate” is notoriously imprecise. But it can be understood to refer to content that students could find traumatizing given their age. For instance, showing graphic Holocaust seens to elementary school students can be seen as inappropriate.
  • Teachers should be careful to avoid content that is never age appropriate at schools, including hateful material, graphic sexuality material, and material involving extreme and explicit violence.

Maxwell, McDonough, and Waddington view the above as a set of common sense criteria that will help teachers stay within professional and legal boundaries. Potentially, it will also help administrators and parents have a common reference point when handling cases of teacher free speech.

Paper Title: “Broaching the subject: Developing law-based principles for teacher free speech in the classroom”

Authors: Bruce Maxwell (Université du Québec à Trois-Riviéres, Canada), Kevin McDonough (McGill University, Canada), and David I. Waddington (Concordia University, Canada)

Full Paper

Published: Teaching and Teacher Education, Volume 70 (2018), Pages 196-203

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