Are teachers entitled to free speech in the classroom? As a teacher of free-speech law, I've got a particular interest in this broadly important question. Thursday a federal appeals court said the answer was no — at least at public schools below the university level.
The decision makes some sense in light of existing precedent. But the Supreme Court has never directly addressed the issue. When it does, it should consider the possibility that the whole law of public workplace free speech has gone awry — and that teachers as well as other public employees should be given greater latitude to express their opinions.
The facts of the case show why teacher free-speech rights actually make a lot of sense. The Chicago Board of Education has a policy prohibiting teachers from using racial epithets in front of students — no exceptions regardless of context or purpose. Lincoln Brown, a sixth-grade teacher at Murray Language Academy, intercepted a student note that included music lyrics with the N-word. The principal of the public school was in the room observing the class.
Brown tried to create a teachable moment to discuss why racial epithets are hurtful, and in the process said the N-word. The school suspended him for violating the ban on racial epithets.
Notice that the rule unquestionably violates what you might think of as the bare minimum of academic freedom. Under it, a teacher couldn't assign Mark Twain's Adventures of Huckleberry Finn —or at least couldn't read from the text in order to discuss it. Presumably a lesson about Kristallnacht would have to be crafted never to speak out loud the derisive words that Nazis painted on Jewish businesses.
The U.S. Court of Appeals for the Seventh Circuit thought that didn't matter. Judge Diane Wood began her opinion by citing something the late Justice Antonin Scalia said in an interview: that judges should be given a stamp marked "stupid but constitutional." Her point was that the Chicago no-epithets rule is dumb, but doesn't violate the Constitution.
The reason the rule didn't violate the teacher's free speech rights, Wood reasoned, was that he didn't have any in the classroom. She relied on the leading Supreme Court case about public employee workplace speech, the 2006 case of Garcetti v. Ceballos. That case involved a lawyer in the Los Angeles County District Attorney's Office who was disciplined for writing an internal memorandum saying that he believed police had lied in seeking a search warrant. The lawyer sued the district attorney, Gil Garcetti.
Astonishingly, the Supreme Court held that the lawyer, a deputy district attorney, had no free-speech right not to be disciplined because he had spoken in the course of performing his duties. In theory, public employees are supposed to enjoy the right to free speech provided they are speaking on matters of public concern. The Garcetti case held that public concern was irrelevant when the employee was speaking pursuant to official duties.
The majority opinion in the Garcetti case, by Justice Anthony Kennedy, specifically said that the decision didn't determine whether teaching and scholarship are the same or different from other public employee duties.
Justice David Souter dissented to make the point that the First Amendment should include some degree of academic freedom. "I have to hope," he wrote, that the Garcetti majority opinion "does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write pursuant to official duties."
In Thursday's Chicago case, the Seventh Circuit followed most other circuit courts and held that there is no constitutional academic freedom for teachers in primary or secondary education. Leaving the question of university classrooms for another day, the court said that because the teacher was teaching students pursuant to his duties, he had no First Amendment rights.
As an application of the Garcetti precedent, this is plausible. But the Garcetti decision was and is wrong, not just for academic settings but for all public employee workplaces.
The theory behind the Garcetti decision is that the government is just like any private employer. A private school can limit its teachers' speech rights, and there is no recourse — so why should the government be any different?
The answer is that when a public employee speaks on matters of public concern, he or she should have the same rights visavis the government as anyone else would have against the government. Otherwise, the mere fact of accepting public employment harshly limits free speech rights.
Of course there must be some room for a public school or university to evaluate the quality of its employees' teaching and scholarship. The First Amendment can't be applied wholesale in educational settings. Otherwise public educational institutions couldn't do quality control or give examinations in which students are rewarded for getting the right answers and graded down for giving the wrong ones.
But a teacher in the classroom is speaking about matters of public concern when he or she discusses racial epithets. That should protect the teacher from sanction, even if the speech is part of the teacher's job. After all, if we want to have good teachers who will prepare students for the real world, we need them to teach and write about matters of public concern — and to model the value of free-speech.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University.