By Shane Stout, Vol. 21 Staff Writer
For decades, the Supreme Court has protected academic freedom, a concept intertwined with the First Amendment that protects the rights of students, teachers, and educational institutions to pursue knowledge without government interference. While academic freedom has traditionally applied to college professors, its tenets also extend to public school teachers, even if it is somewhat limited due to the age of their students. The line between academic freedom and the right to free speech is somewhat blurry, but it has nonetheless come into focus in recent weeks in regard to public school curricula.
In December 2021, Florida Governor Ron DeSantis signed a bill into law that prohibited the teaching of critical race theory in Florida public schools. More recently, DeSantis has taken steps to ban diversity programs in Florida public colleges and universities, while simultaneously banning critical race theory there as well.
DeSantis’s actions, while pleasing to his supporters, have had a chilling effect on education in the state of Florida. The College Board amended its new Advanced Placement course on African American studies after DeSantis threatened to ban the course. In addition to DeSantis’s statement, the College Board worried about the curriculum’s adoption in dozens of other states that have also adopted measures opposing critical race theory.
These laws, often referred to as “divisive concepts” legislation, prompted criticism from those who believe they chill productive intellectual discussion, a bedrock of education. More pointedly, those critics argue that divisive concepts legislation unconstitutionally infringes on free speech.
While many may find this pattern troubling, its constitutional implications are less than clear.
Is academic freedom the same thing as free speech?
Not quite. According to the American Association of University Professors, “The First Amendment generally restricts the right of a public institution…to regulate expression on all sorts of topics and in all sorts of settings. Academic freedom, on the other hand, addresses rights within the educational contexts of teaching, learning, and research both in and outside the classroom….” So while free speech and academic freedom may seem similar, there are important differences between the two. Most importantly, free speech is explicitly protected by the Constitution, while academic freedom is not.
Nonetheless, the nature of academic freedom is such that it overlaps heavily with free speech. The concept of free speech is necessarily implicated when it comes to what teachers can say in teaching their students. In order for students and teachers to pursue knowledge without government interference, they must be able to speak freely, subject to the bounds of free speech within the classroom. As a result, while the ideas of academic freedom and free speech are separate, they are inextricably linked in the context of education.
So, how does free speech work in the classroom?
It’s complicated. Though teachers and students do have free speech rights at school and in the classroom, they aren’t identical to free speech rights outside the classroom. In Tinker v. Des Moines (1969), the Supreme Court held that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” So, as a general matter, both students and teachers reserve their First Amendment rights, even at school. However, in Garcetti v. Ceballos (2006), the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Since public school teachers are public employees, they do not always retain their right to free speech when teaching. As a result, these two cases, both considered good law, stand diametrically opposed to one another.
The Garcetti Court did indicate that there might be other, more nuanced constitutional interests in the educational context than the Garcetti opinion provided. Specifically, Justice Kennedy wrote, “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for” by the Supreme Court’s earlier rulings. However, the Court has yet to rule on those interests.
So what does that mean for divisive concepts and public school curricula?
For the time being, these divisive concepts laws are likely constitutional under the current free speech jurisprudence of the Supreme Court. While they seem obviously restrictive of teachers’ free speech rights, under Garcetti, those rights are extremely limited. And given that state legislatures create curriculum standards, those laws do not overstep traditionally-understood concepts of who controls public education.
However, this area of law is badly in need of constitutional resolution by the Supreme Court. Public school teachers deserve vastly different free speech rights than other public employees. As it stands, Garcetti regulates the speech of a corrections officer and a teacher in exactly the same way. Teachers occupy a unique position in the American social fabric than do other public employees, and their free speech rights should be reflective of that reality.
In addition, the current law is incomprehensible – because both cases are still good law, parties on opposing sides of the divisive concepts cases can and do make correct, well-supported arguments. It makes little sense that teachers do not shed their constitutional rights at the schoolhouse gate, but also do not retain their free speech rights in their official duties. Those two realities cannot exist at the same time, yet somehow they currently do.
The Supreme Court needs to address this issue once and for all, and that opportunity may come soon. Given the high profile nature of Florida’s and other states’ objections to critical race theory, a case may make it to the Supreme Court in the next few terms. The current law on the matter is incoherent, and the Supreme Court would be well-advised to take up a case to decide this vital issue once and for all.