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March 1, 1993
Vol. 50
No. 6

Academic Freedom: Professional or Legal Right?

  • Two tenured high-school teachers were fired for using and advocating a new classroom management system that the administration opposed.
  • A tenured math teacher was terminated for incompetency based in large part on a high proportion of student Fs and for insubordination when he refused to change his instructional methods.
  • A nontenured teacher's contract wasn't renewed when he used a nonapproved supplemental reading list in his world history classes.
  • A tenured junior-high-school social studies teacher was prohibited from teaching a nonevolutionary theory of creation.
  • A 5th-grade teacher was directed to remove two religious books from his classroom library and to cease reading the Bible during a daily “silent reading period.”
  • The contract of a nontenured high-school science teacher was not renewed after he criticized the principal for failing to remove dangerous chemicals and for denying his field trip requests.
  • A tenured middle-school teacher didn't receive a new contract because she refused to retract articles critical of the school in the student newspaper, which was produced in her journalism class.

Supreme Court Test

  1. [[[[[ **** LIST ITEM IGNORED **** ]]]]]
  2. If so, was this protected expression a substantial or motivating reason for the school district's adverse action against the teacher?
  3. If so, would the district have taken the action against the teacher regardless of the protected expression?
To prevail on the constitutional grounds of academic freedom, an educator must successfully clear the first two hurdles and not be beaten by the school board on the third one.

Deflated Protection

The teachers who were fired for using and publicly advocating a new classroom management system cleared the first of the Supreme Court's hurdles, but they were not protected for using it in the classroom. Similarly, the journalism teacher proved that the newspaper incident was a substantial or motivating factor in the school board's decision and that the board would have renewed her contract otherwise. The critical articles were the real reason for nonrenewal and not reprimands for other minor matters, such as using school stationery to send a memo to other district schools.
The other teachers tripped up on various parts of the Supreme Court's test. For example, the Fifth Circuit Court of Appeals determined that the history teacher's use of an unapproved reading list was not, in the specific circumstances of his case, a matter of public concern. Similarly, the Eighth Circuit ruled that the high school science teacher would not have been renewed regardless of his criticism of the principal.
In addition, more and more lower courts are using Hazelwood School District v. Kuhlmeier to deflate the First Amendment protection of teacher expression, particularly in the confines of the classroom. Yet the Hazelwood ruling addresses students' school-sponsored expression.
The legal lessons in these cases contradict some traditional beliefs about academic freedom, which survives but certainly does not thrive as a defense for public school teachers. And the Supreme Court's test is increasingly defeating faculty in public institutions of higher education.
Academic freedom generally provides much more potent protection for what a teacher says as a citizen outside the school than for what the teacher says in the classroom, where the school board is largely in control of the curriculum. Teachers and administrators who advocate a wider and stronger umbrella of academic freedom would do well to weave ethical/professional arguments into solid school board policies or, where applicable, into local collective bargaining agreements. Otherwise, the words to the wise for educators seeking to speak out under the rubric of academic freedom are stop, look, and, in light of the Supreme Court's test, think thrice.
End Notes

1 Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3d Cir. 1990); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172 (3d Cir. 1990).

2 In re Termination of Johnson, 451 N.W.2d 343 (Minn. App. 1990).

3 Kirkland v. Northside Indep. School Dist., 890 F.2d 794 (5th Cir. 1989), cert. denied, 110 S. Ct. 2620 (1990).

4 Webster v. New Lenox School Dist. No. 122, 917 F.2d 1004 (7th Cir. 1990).

5 Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), cert. denied, 112 S. Ct. 3025 (1992).

6 Watson v. Eagle County School District RE-50, 797 P.2d 768 (Colo. App. 1990).

7 Ingrum v. Nixa Reorganized School Dist. R-2, 966 F.2d 1232 (8th Cir. 1992).

10 484 U.S. 260 (1988).

11 484 U.S. 260 (1988).

12 See, for example, P. Zirkel, (1989), “Academic Freedom in Higher Education,” West's Education Law Reporter 47, 3: 809–25. Hazelwood has also begun to creep into the higher education cases. See, for example, Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991), cert. denied, 112 S. Ct. 294 (1992).

13 See, for example, Knapp v. Whitaker, 757 F.2d 827 (7th Cir. 1985). app. dismissed. 474 U.S. 803 (1985); Thompson v. Board of Educ., 711 F. Supp. 394 (N.D. Ill. 1989); Wichert v. Walter, 606 F. Supp. 1516 (D.N.J. 1988).

14 See, for example, Knapp v. Whitaker, 757 F.2d 827 (7th Cir. 1985). app. dismissed. 474 U.S. 803 (1985); Thompson v. Board of Educ., 711 F. Supp. 394 (N.D. Ill. 1989); Wichert v. Walter, 606 F. Supp. 1516 (D.N.J. 1988).

15 See, for example, Knapp v. Whitaker, 757 F.2d 827 (7th Cir. 1985). app. dismissed. 474 U.S. 803 (1985); Thompson v. Board of Educ., 711 F. Supp. 394 (N.D. Ill. 1989); Wichert v. Walter, 606 F. Supp. 1516 (D.N.J. 1988).

Perry A. Zirkel has been a contributor to Educational Leadership.

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