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Will Teachers' First Amendment Rights Be a Casualty of the War on Terror?
Why the Supreme Court Should Rethink the Rules that Apply to Public School Teachers

Tuesday, Mar. 14, 2006

So far, this year has been tumultuous for Jay Bennish, who teaches social studies at a public school in Aurora, Colorado.

On February 1, the day after President Bush delivered the State of the Union, Bennish commented to his World Geography class that Bush's address "[s]ounds a lot like the things that Adolf Hitler used to say….We're the only ones who are right, everyone else is backward and our job is to conquer the world."

Bennish added that he wasn't equating the President with Hitler, but some students were still offended. One student had recorded Bennish's comments on an MP3 player. This wasn't the only highly controversial remark that was captured - for example, Bennish also called America "probably the single most violent nation on planet Earth" - but it's been at the center of the uproar over the 21-minute recording.

At the end of February, the school district placed Bennish on unpaid leave - triggering a protest walkout by at least 150 students (reports varied) at the school. The district says that Bennish violated a policy requiring teachers to present all sides of a given issue in a fair and balanced way.

Bennish retained an attorney, David Lane, who was quoted in the Rocky Mountain News as saying "I know about 10 federal judges who are more than willing to teach the Cherry Creek School District what the First Amendment is all about."

Last week, Bennish returned to the classroom. But as he and other public school teachers continue to exercise their First Amendment rights during class, what rules will apply?

In this column, I'll argue that the Supreme Court's precedents do not give public school teachers like Bennish enough leeway.

Current Supreme Court Doctrine on Public School Teachers' Speech Rights

Although Bennish's attorney talked a big game, it's not clear that he would have actually won his case in court. In part, that's because the two key Supreme Court precedents on public employee speech - Pickering v. Board of Education, decided in 1968, and Connick v. Myers, decided in 1983 -- are disappointingly limited.

A third important case, Garcetti v. Ceballos - which I discussed in an earlier column -- should be decided in the next few months. It was previously argued before the Court, but will now be reargued on March 21, with new Chief Justice John Roberts and new Justice Samuel Alito participating. But Garcetti is unlikely to help the situation of public school teachers, specifically: Like Connick, it involved the rights of a very different kind of public employee: a deputy district attorney.

Pickering is the source of the balancing test that courts apply in public employee speech cases: The test asks the court to weigh the employee's interest in "commenting upon matters of public concern" against the government's interest in "promoting the efficiency of the public services it performs through its employees."

The application of that test makes at least some sense when the context is a D.A.'s office: There, if internal disagreements about office policy are aired publicly, rather than being resolved hierarchically, the office's ability to function may indeed be undermined. (Indeed, a defense attorney may be able to use a deputy D.A.'s disagreement with his or her superiors as a way to get a jury to doubt a defendant's guilt.)

But the Pickering test makes virtually no sense at all when the context is a public school classroom. Internal disagreements about politics among public school teachers -- at all levels of hierarchy -- are not damaging. To the contrary, they enhance the school's ability to function in its mission of graduating smart, informed, concerned citizens. But the test allows school districts to spin a continuing disagreement over what should be taught as "a lack of efficiency in the delivery of services" for which a teacher constitutionally could be fired.

This kind of balancing test also means, in practice, that a court has a great deal of discretion to decide which side will win a given conflict over a teacher's speech. A better test would weight the balance strongly in teachers' favor - allowing them to win almost all the time, with rare exceptions.

Teachers Should Be Recognized as a Special Kind of Public Employee

Teachers, especially K-12 teachers who teach subjects like Bennish's, social studies, are a special kind of public employee - a kind that I believe should be favored under First Amendment doctrine, for several reasons.

First, teachers like Bennish speak and write for a living - the core responsibility of their job is to lead class discussions and comment on student papers, often on political topics. Speaking and writing are "the public services" the school "performs through" its teachers, to quote Pickering's test. When speech is the very core of the public employee's job, surely First Amendment rights should be at their maximum.

Second, teachers like Bennish have the job not only of speaking frequently on political topics, but also of teaching children and teenagers to speak on these topics, too.

These students, too, have First Amendment rights - albeit, according to precedent, qualified ones. And they have First Amendment rights not only as speakers, themselves, but also as listeners. Constitutional law allows listeners to sue, even though the First Amendment formally only protects speech, because courts recognize that the value of speech is to the listener, not just to the speaker. For this reason, too, First Amendment interests are especially intense in this context. Yet courts still apply the same kind of balancing test they would if, say, a photographer at the Department of Motor Vehicles were to be fired for writing a letter to the editor complaining about being underpaid.

Joe Kyle Versus Jay Bennish: Can We Mandate One Kind of Teacher, and One Kind of Teaching?

To see how teachers' and students' First Amendment rights are intertwined, consider a Parsippany, New Jersey high school's recent mock war crimes trial of President Bush. They probably would not have organized the trial -- or, at least, could not have organized it as accurately and well -- without a teacher's help. (The same couldn't be said, for instance, of students at Boalt Hall, Berkeley's law school, who've capably held similar mock trials.)

In Parsippany, the teacher who brought the trial together was Joe Kyle. Less a firebrand (or perhaps just savvier) than Jay Bennish, Kyle has defended the trial of Bush in the press by pointing out that soon, his sophomore class will also hold a mock trial of Andrew Jackson for his treatment of Native Americans, and that, while teaching at another New Jersey high school, he had another class hold a mock impeachment trial of then-President Clinton.

Surely Kyle's approach is preferable to Bennish's. For one thing, Kyle is letting the students do the speaking, rather than engaging in his own lengthy rant. For another, Kyle is having the students present both sides of the question; Bennish presented just one: his own. And Kyle wisely obtained the principal's authorization before he went forward, whereas Bennish just spoke out.

But allowing a school district to mandate, by law, that public school teachers include only Kyles, and no Bennishes, has its own costs, too.

One of them is that line-drawing isn't as simple as it appears. Kyle and Bennish mark points on a continuum that ranges between teachers who openly preach their own politics, and teachers who provide a context for students to develop points of view. And it's hard to see where a given teacher really falls on that continuum - and dangerous, from a First Amendment perspective, to try to decide. Scrutiny of the content of speech by courts is a key First Amendment taboo - for such scrutiny, even if supposedly used in the service of classification, often amounts to censorship.

The line drawing issue even occurs in the Kyle case - where the teacher has gone to lengths to prove his "neutrality." Is Kyle's trial really as neutral as he spins it to be?

Not according to conservatives in the community - some of whom are angry that the trial is even being held. And they have a point: Holding the trial does, to some extent, require political judgments.

One is the judgment that such claims are not entirely frivolous, and that there may be enough evidence for a war crime trial against the President. That's something the Bush Administration, for one, would forcefully deny.

In addition, the mock trial tacitly assumes another political point the Bush Administration would dispute: that any tribunal ought to have jurisdiction to determine whether America has violated international law. When it comes to the International Criminal Court, the Administration has fought its jurisdiction tooth and nail.

In short, if we choose a legal test to weed out the Bennishes, we may well have to sacrifice the Kyles, too, for the sake of consistency.

The Search for "Balance": Not Classroom-by-Classroom But Overall

"Balance" always sounds like an attractive goal. No wonder, then, that in Pickering, the Court settled on a balancing test. Bennish's school district, similarly, seeks to require a "balanced" curriculum. But while balance may be an unequivocally good thing for Olympic skaters, it's quite the opposite for free speech.

Teachers are going to have political positions. If they teach inherently political subjects

-- like Social Studies, Bennish's subject, or Government, Kyle's subject - it's senseless and oppressive to force them to hide these beliefs. We wouldn't do it to students - who surely can't constitutionally be punished for voicing political sentiments in class. Restricting the speech of the very teachers who are supposed to help define and referee the free speech arena for students would be ironic at best, and tragic at worst.

It's also counterproductive: When teachers must present arguments they think are dead wrong as if they were just as compelling as those with which they passionately agree, students will easily catch on to what's really going on. The only thing gained will be an atmosphere of taboo for the teachers: "Oooh, Ms. Green let slip she's a Republican in Civics! Like we didn't already know."

Granted, sometimes a rare, talented teacher can truly play devil's advocate as convincingly as she can voice her own views, so that students genuinely question what she believes. But those who can't walk this thin tightrope are legion - and their failure to hide sincerely-held beliefs should not be a factor in their firing.

In the end, there's a way to serve balance without forfeiting free speech: The school should focus instead on providing balance through all the years a given student spends in high school, not enforcing it on a given teacher in a given class.

Classroom exercises - like Kyle's trials - that oppose different viewpoints should be the norm. Diverse Op Eds should be required reading. Liberal districts should take pains to hire conservative teachers, and vice-versa. Teachers should make sure to give a podium to students who hold opposite views, and to treat them fairly in the classroom, and in giving out grades. It's always hard to grade the work of someone who believes something contrary to what you believe: You may admire the arguments on the other side, but by definition, they don't ultimately reach you. But teachers need to try their hardest to fight against this inherent difficulty - a far better stance than pretending it doesn't exist.

Measures like these are better, in my view, than futilely striving after "balance." After all, "balance" isn't required of our eighteen-year-old voters. What's required is that they make a choice - a political one.

Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter. She attended a public high school in New Jersey.

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