Eye on Education: Addressing First Amendment controversies in public schools

Stephen Davis: Eye on Education

Two hot-button issues have recently emerged in the ongoing debate surrounding academic freedom and free speech in public schools.

One issue centers on concerns related to the inclusion of critical race theory in American school curricula (e.g., systemic racial discrimination in society). The other centers on the U.S. Supreme Courts recent ruling in favor of a former high school cheerleader who was punished by her school for posting profane comments about the school on Snapchat while she was off school grounds.

Both examples contain important implications for how public schools manage controversial issues.

Before addressing the merits of each, it is important to note that academic freedom and free speech are closely related legal concepts that have somewhat different implications for universities and public schools. The modern concept of academic freedom which emerged from 19th century German universities rests upon a broad intellectual landscape of ideas unconstrained by narrow partisan or political interests.

The U.S. Supreme Court stated, Our nation is deeply committed to safeguarding academic freedom, which is of transcendental value to us all and not merely to the teachers concerned. . . . The First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom.

However, the application of academic freedom in public schools is less clear and continues to be a topic of debate practically, politically and in the courts. While the U.S. Supreme Court has largely avoided ruling on academic freedom cases in public schools, lower courts have provided considerable guidance. In general, lower courts have protected local school boards and their authority to make curricular decisions influenced by community values and needs.

Moreover, courts have ruled that public schools are subject to state legislative authority and must conform to the education laws and regulations enacted by the state.

Importantly, while cases relating to academic freedom typically focus on the behaviors and practices of professional educators, cases relating to freedom of speech (more generally) have rendered important implications for both educators and students. In recent years, court cases related to freedom of speech in public schools have leaned in favor of more student expression rather than less.

Nevertheless, this distinction is not razor-sharp, and the rights of public school students are not unlimited.

In the Supreme Court case involving the high school cheerleader, the content of the students speech was profane and objectionable. However, it did not rise to the level of a material disruption to the school. No one was threatened or slandered. Moreover, the student posted her comments from home on her personal computer on a widely used social network.

Justice Stephen Breyer wrote, . . . sometimes it is necessary to protect the superfluous in order to preserve the necessary. Breyers comment echoed the courts earlier ruling that, students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

The debate over critical race theory, also tethered to the First Amendment, is amplified most by differing political perspectives. Importantly, state legislatures and local school boards possess sole authority to determine what is taught and how. Individual schools, teachers, administrators and labor unions have no independent authority to ignore or modify state laws and local board policies.

The ideas that define critical race theory are not new. To varying degrees, states and local school districts have been addressing elements of the theory for nearly 50 years. There are important arguments made by advocates and opponents of the theory that ultimately must be processed through rigorous public debate and policy-making processes.

While I believe that to the extent possible, public schools ought to be included in the open marketplace of ideas, it is particularly important that students are not sheltered from controversial ideas that are based upon thoughtful arguments and alternative interpretations.

After all, a central mission of public education is to help students become independent, open-minded, ethical and creative thinkers.

Stephen Davis is a career educator who writes a column that publishes every other Wednesday in the Daily Republic. Reach him by email at[emailprotected].