Rights Watch: National Education Association
Academic Freedom Takes a Hit
Courts have sent the message:It's okay to fire teachers who use controversial materials.
This has not been a good year for teacher free speech. The Eighth Circuit Court of Appeals ruled in June that a suburban St. Louis school district did not violate the First Amendment when it fired NEA member Cissy Lacks for allowing her high school students to write and perform skits containing "street language."
Also in June, the Colorado Supreme Court upheld the dismissal of NEA member Al Wilder for showing his high school seniors the movie 1900, Bernardo Bertolucci's acclaimed--but R-rated--film.
And, as reported in this column last May, the Fourth Circuit Court of Appeals earlier this year rejected NEA member Margaret Boring's claim that she was wrongfully punished for selecting a controversial play for her students to perform in a state competition in North Carolina.
"A public high school teacher," the Fourth Circuit said, has no "First Amendment right to participate in the makeup of the school curriculum."
These three decisions send teachers a frightening message: Those who stray beyond the narrow confines of the approved curriculum by using controversial teaching methods or materials do so at their own risk.
Cissy Lacks was a 23-year veteran English teacher when she was sacked in 1995 for allowing her students to use profanity in the plays they wrote and performed in her creative writing class.
A federal district court in 1996 held that the school board violated her right to academic freedom, discriminated against her because of her race, and lacked "good cause" to dismiss her under the state tenure law.
Lacks won $826,000 in damages and a reinstatement order. But last June, the court of appeals reversed on all counts and threw out the award.
For years, Lacks had used the controversial student-centered teaching method, a technique that allows students initially to express themselves in creative works without censorship. She believed that this method was an effective means of getting reticent students to write.
In court, Lacks argued that no administrator had ever told her not to use this teaching technique, and she cited numerous instances where other teachers allowed students to read profanity out loud from works of literature.
Rejecting her claims, the Eighth Circuit said that the district's student conduct code prohibiting student profanity gave her plenty of notice that allowing students to use foul language--even in the context of a classroom exercise--was not allowed. Such a policy, the court said, does not violate the First Amendment.
As to the race claim, the court held that, while there was evidence of racial animus toward her on the part of the administrators who recommended her termination, there was no evidence that the individual board members who made the final decision to fire her were also racially biased.
In an editorial, the St. Louis Post-Dispatch lamented that the court's decision "limited the freedom of teachers to use controversial teaching methods to stir the intellectual curiosity of their students."
And at a June press conference, Lacks warned, "If this can happen to someone like me, who has worked in good faith and tried to follow school policy, it could happen again--and it will happen again."
Like Cissy Lacks, Al Wilder was fired midyear after a 25-year teaching career. His crime? Showing a controversial R-rated movie to his logic and debate class of 17- and 18-year olds without getting his principal's prior approval, as required by the "controversial materials" policy of Colorado's Jefferson County School District.
At the hearing, Bernardo Bertolucci, the Italian director of the movie, testified by telephone on Wilder's behalf.
The Colorado Court of Appeals last year ruled that the firing violated Wilder's First Amendment rights, but the state supreme court reversed that by a 4-3 vote.
In rejecting his academic freedom claim, the high court said, "It cannot be left to individual teachers to teach what they please."
A teacher, the court added, "has no First Amendment right to use non-approved controversial learning resources in his classroom without following the District's [controversial materials] policy."
The dissent argued that Wilder didn't have "fair warning" that a film like 1900 was a "controversial learning resource."
Dissenting Justice (and former sixth grade teacher) Gregory Hobbs, Jr. eloquently explained the abiding value of academic freedom:
"When we strip teachers of their professional judgment, we forfeit the educational vitality we prize. When we quell controversy for the sake of congeniality, we deprive democracy of its mentors."
It's not yet time to close the book on these cases. This summer NEA asked the U.S. Supreme Court to overturn the decision in the Boring case. The Court likely will announce this fall whether it will hear the appeal.
NEA also filed a motion last July asking the Eighth Circuit Court to rehear the Lacks case, but the prospects of a favorable ruling are not bright.
A decision whether to seek Supreme Court review of the Wilder decision is still pending.
Michael D. Simpson
NEA Office of General Counsel