John Whitehead founded The Rutherford Institute in 1982. The Institute initiates and participates in lawsuits and educational programs concerning free speech and free exercise issues. As a lawyer, Whitehead has filed briefs in 28 cases and written 14 books. He and his wife, Carol, and their five children live in Charlottesville, Virginia.
The First Amendment, as interpreted and defined by the United States Supreme Court, means that the government (and, therefore, the public school) has no authority to restrict expression because of "its message, its ideas, its subject matter, or its content."[1] As the Supreme Court has said:
It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the government itself or a private license.[2]
By limiting the governmental interference with freedom of speech, inquiry, and association (thereby necessitating freedom of expression), the Constitution protects all persons, no matter what their calling- including public school teachers. As Justice William O. Douglas once said:
[T]he counselor, whether priest, parent, or teacher, no matter how small his audience-these too are beneficiaries of freedom of expression.[3]
The Supreme Court has also stated: "Any inhibition of freedom of thought, and of action upon thought in the case of teachers brings the safeguards of those amendments [First and Fourteenth] vividly into operation."[4] Teachers need always to be "free to inquire, to study and to evaluate, to gain new maturity and understanding.''[5]
This is part and parcel of the nation's deep commitment to "safeguarding academic freedom" in the public schools, or what the Supreme Court has called the "marketplace of ideas."[6]
The Supreme Court has referred with approval to academic freedom as "the principle that individual instructors are at liberty to teach that which they deem to be appropriate in the exercise of their professional judgment."[7] Interpreted broadly, this freedom involves and protects both students and faculty.
It is the collective freedom of the faculty member to teach free from pressure, penalties, or other threats by authorities or other persons inside or outside their institutions of learning. It is the freedom of the student to be taught by unrestrained teachers and to have access to all available data pertinent to the subject of study at an appropriate educational level.[8]
Although the Supreme Court has not directly ruled on whether public school teachers possess academic freedom, the Supreme Court has noted that academic freedom is "a special concern of the First Amendment."[9] In interpreting this, most lower courts have determined that public school teachers are vested with academic freedom in the classroom.[10]
As one federal appellate court stated: "[Teachers] cannot be made to simply read from a script prepared or approved by the [school] board.''[1l] This right, however, is not absolute. It must be balanced against the interest of school authorities in protecting what they consider are the "impressionable" minds of young people from any form of propagandism in the classroom.[12] This does not apply to the dissemination of information to students, but rather to the indoctrination of the students by the teacher.[13]
For example, if a teacher attempts to use the classroom as a platform to advocate beliefs which undermine basic school principles, school authorities would be justified in placing restrictions on that teacher. A teacher will rarely be discharged for exercising his or her academic freedom. The academic freedom would have to be carried to such a point that the teacher is clearly no longer useful as an instructor.[14]
This might occur if the teacher uses excessive class time to discuss topics unrelated to the subject matter[15] and neglects to communicate to the students a substantial portion of the subject matter which the teacher has been assigned to teach.
Any restrictions on a teacher's academic freedom should have clear guidelines which the teacher can follow. One federal court notes: "When a teacher is forced to speculate as to what conduct is permissible and what conduct is proscribed, he is apt to be overly cautious and reserved in the classroom. Such a reluctance on the part of the teacher to investigate and experiment with new and different ideas is anathema to the entire concept of academic freedom.''[l6]
For instance, an order by public school authorities for a teacher to cease from discussing all religion in the classroom might violate the constitutional freedom of the teacher. It would be an unconstitutional inhibition of religion and a form of hostility not permitted.
An example of this would be forbidding a teacher to include relevant historical facts that pertain to the subject matter merely because of the religious nature of such facts. Allowing school officials to exclude completely a particular idea or ideology from the classroom runs the risk of "cast[ing] a pall of orthodoxy over the classroom."[17]
Various federal courts have held that administrative censorship "has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice.''[l8] In this respect, the Supreme Court has warned that the danger of a "chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed.''[l9]
In Tinker v. Des Moines Independent School District,[20] the Supreme Court stated that free expression is guaranteed in the public schools where it (1) does not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, and (2) does not invade the rights of others.[2l]
Although the Supreme Court in Tinker spoke directly to the rights of students, the Supreme Court indirectly recognized the rights of faculty.[22] This fact has been recognized by some lower federal courts.[23]
Following the decision in Tinker, a federal appeals court in James v. Board of Education[24] applied the Tinker test to a high school teacher's freedom of expression as guaranteed in the First Amendment.[25] In James, a high school teacher wore a black arm band into the classroom to protest the Vietnam War. The teacher's action, like the actions of the students in Tinker, was religiously motivated.[26]
The court concluded that the teacher's conduct was a permissible form of symbolic speech. First, the expression passed the two-part Tinker test because it did not materially and substantially jeopardize the maintenance of order and discipline in the school, and it did not invade the rights of others.
Second, the expression did not interfere with the teacher's obligations to teach. Although the teacher had more persuasive influence over a "captive" student audience than would another student, the teacher was not coercive and did not "arbitrarily inculcate doctrinaire views in the minds of students."[27]
The high school students were able to distinguish between a teacher's personal views and those of the school board.[28] For school authorities to restrict a teacher's speech, they must demonstrate a "reasonable" basis for concluding that the teacher's speech threatens to impair the interests of the school.[29]
The James court held: "Unfettered discretion to violate [the teacher's] fundamental constitutional rights cannot be given to the school board."[30] Unfettered discretion could lead to suppression of a teacher's speech by school authorities based upon the prejudices of the particular community.[31]
Even if school authorities disagree with a teacher's philosophies, the teacher's constitutional right to free speech is protected. As the Supreme Court has made very clear, "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."[32] Under the First Amendment, school officials, as the Supreme Court in Tinker held, cannot suppress expression of beliefs and feelings with which they do not wish to contend.[33] Also, school officials cannot constitutionally abridge freedom of speech to obviate slight inconveniences or annoyances.[34]
For the religious expression of a public school teacher to violate the First Amendment's prohibition against the establishment of religion, the teacher's expression must constitute "state action." State action exists when the state sponsors or mandates religion.[35]
For example, state action would exist where the school requires daily Bible readings by all teachers. Although a teacher is an employee of the public school, this does not mean that all expression by the teacher has been sponsored or mandated by the school.
The school's interest must be balanced against the teacher's individual right to academic freedom and free expression in both public and private speech.[36] In Breen v. Runkel,[37] a federal district court found that when teachers are acting in their capacity as classroom teachers, they are "state actors" for purposes of Establishment Clause analysis.[38]
In Breen, the teachers were praying in their classrooms, reading from the Bible, and telling stories that had a biblical basis. The court found these activities to be an Establishment Clause violation. They reasoned that "Establishment Clause limitations placed on public schools outweigh whatever free speech or free exercise claims could have been asserted by individual teachers."[39]
However, not all expression made by teachers while teaching in the classroom is "state action." In James v. Board of Education,[40] the federal appellate court found the teacher's act of wearing an arm band in religious protest while in the classroom during regular classroom hours to be a form of personal expression.[41]
In James, the court upheld the teacher's right to wear the arm band in direct opposition to the request by the school that he remove it. The doctrine of academic freedom also negates the argument that a public school teacher is always an agent of the state for the purposes of implicating Establishment Clause concerns.
Since academic freedom allows the teacher discretion within the classroom to express himself or herself and to plan the medium through which to teach the class, the conclusion is that such expression on the part of the teacher is technically "private" action, not state action.
Therefore, teacher action which is protected under academic freedom does not necessarily implicate the state in such a way as to constitute "state action." In Williams v. Eaton,[42] the federal appellate court held"teacher action" can only be 'state action' "if the State has been significantly involved by [the teacher's] actions."[43]
A school is not significantly involved by a teacher's personal freedom of expression or a teacher's expression which results from the doctrine of academic freedom. Therefore, "teacher action" is pure "state action" only when the teacher is conveying to the students information which the school specifically mandates the teacher to convey.
At the secondary school and university level, the rights presently held by teachers and students are substantial. The teacher's constitutional right to academic freedom and the student's right to hear both provide a constitutional base from which a nonstudent may gain access to the campus. Moreover, the Supreme Court's affirmation of the Equal Access Act provides clear guidelines for equal treatment of student religious organizations.
Educational officials, therefore, do not have a compelling state interest in denying equal treatment to religion or religious topics and practices on the public school campus. To the contrary, as the United States Supreme Court has held, the state must accommodate religion and religious freedom in such instances.
The classroom has been said to be the marketplace of ideas. As long as material is relevant to the subject matter being taught and is presented objectively, it is suggested that school authorities should preserve the marketplace concept and maintain the freedoms essential to a proper administration of the education system.
The time has passed when it can be validly argued that the young must be shielded. Instead, they must be provided with an adequate educational base from which to confront a world that abounds with devastating crises.
One effective way of providing such an educational base is by allowing freedom of religious expression. In this way, not only can the educational objective be attained, but also precious and ancient liberties can be preserved.
Christian Leadership Ministries maintains an electronic mailing list discussion forum FreeSpeech dedicated to discussions concerning the first amendment's freedom of speech as it relates to the university environment.
1. Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
2. Red Lion Broadcasting Company v. Federal Communications Commission, 395 U.S. 367, 390 (1969).
3. Poe v. Ullman, 367 U.S. 497, 514 (1961) (Douglas, J., dissenting) (emphasis supplied).
4. Shelton v. Tucker, 364 U.S. 479, 487 (1960). See also Kingsley International Picture Corporation v. Regents of University of State of New York, 360 U.S. 684, 688 (1959), where the Supreme Court stated that the "First Amendment's basic guarantee is of freedom to advocate ideas."
5. Sweezy v. New Hampshire, 354 U.S. 234, 25O (1957).
6. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).
7. Edwards v. Aguillard, 482 U.S. 578, 586 n. 6 (1987).
8. Burkholder, Religious Rights of Teachers in Public Education, 18 Journal of Law and Education 335, 345 (1989). See also Note, Religious Rights of Public School Teachers, 23 UCLA L. Rev. 763, 769 (1976) (quoting Hoffman, A Note on Academic Freedom, 44 Phi Delta Kappa 185 [19631).
9. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).
10. See, e.g., Kingsville Independent School District v. Cooper, 611 F.2d 1109 (5th Cir. 1980); Dean v. Timpson Independent School District, 486 F. Supp. 302 (E.D. Tex. 1979); Parducci v. Rutland, 316 F. Supp. 352 (M.D. Ala. 1970).
11. Cary v. Board of Education, 427 F. Supp. 945 (D. Colo. 1977), affd, 598 F.2d 535, 543 (lOth Cir. 1979).
12. Parducci v. Rutland, 316 F. Supp. 352, 355 (M.D. Ala. 1970).
13. Freeman, The Supreme Court and First Amendment Rights of Students in the Public School Classroom: A Proposed Model of Analysis, 12 Hastings Const. L. Q. 1, 20 (1984).
14. Kingsville lndependent School District v. Cooper, 611 F.2d 1109,1113 (5thCir. I 980).
15. See generally Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970).
16. Parducci, 316 F. Supp. at 357.
17. Keyishian, 385 U.S. at 603.
18. Keefe v. Geanakos, 418 F.2d 359, 362 n. 9 (Ist Cir. 1969), citing Wieman v. Updegraff, 344 U.S. 183,194,195 (1952); Mailloux v. Kiley, 448 F.2d 1242, 1243 (IstCir. 1971).
19. Keyishian, 385 U.S. at 604.
20. 393 U.S. 503 (1969).
21. 393 U.S. at 513.
22. Tinker, 393 U.S. at 506. See also Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471, 478 (2d Cir. 1976).
23. See Texas State Teachers Association v. Garland Independent School District, 777 F.2d 1046, 1053 (5th Cir. 1985) (teachers' communications may be suppressed only when they materially or substantially interfere with the activities or discipline of the school). But see Fowler v. Board of Education of Lincoln County, Kentucky, 819 F.2d 657, cert. denied, 108 S. Ct. 502 (1987) (teacher's conduct in showing film containing violence and nudity in high school was not protected expressive or communicative conduct).
24. 461 F.2d 566 (2d Cir. 1972), cert. denied, 409 U.S. 1042 (1972), reh'g denied, 410 U.S. 947 (1973).
25. Id.at571.
26. See the discussion of Tinker in chapter 8.
27. James v. Board of Education, 461 F.2d 566, 573 (2d Cir. 1972), cert. denied, 409 U.S. 1042 (1972), reh'g denied, 410 U.S. 987 ( 1973).
28. See generally Bender v. Williamsport Area School District, 563 F. Supp. 697 (M.D. Penn. 1983), rev'd, 741 F.2d 538 (3rd Cir. 1984), vacated, 475 U.S. 503 (1986), reh'g denied, 476 U.S. 1132 (1986); see also Widmar v. Vincent, 454 U.S. 263 (1981).
29. James, 461 F. 2d at 574.
30. Id. at 575.
31. Id. at 575.
32. Shelton v. Tucker, 364 U.S. 479, 487 (1960), quoted in Keyishian v. Board of Regents, 385 U.S. 589 (1967); Tinker v. Des Moines Independent Community School District 393 U.S. 503, 512 (1969).
33. 393 U.S. at 511; see also Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966).
34. Giboney v. Empire Storage and Ice Company, 336 U.S. 490, 501-02 ( 1949); Cox v. Louisiana, 379 U.S. 559, 564 (1965), reh'g denied, 380 U.S. 926 (1965).
35. See generally Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968).
36. See Texas State Teachers Association v. Garland Independent School District, 777 F.2d 1046 (5th Cir. 1985), affd, 107 S. Ct. 41 (1986); May v. Evansville Vanderburgh School Corporation, 787 F.2d 1105,1108 (7th Cir. 1986).
37. 614 F. Supp. 355 (D.C. Mich. 1985).
38. Id. at 358.
39. Id. at 360.
40. 461 F.2d 566 (2d Cir. 1972).
41. Id. at 568.
42. 443 F.2d 422 (lOth Cir. 1971), dismissed, 333 F. Supp. 107 (D. Wyo. 1971).
43. Id. at 433.