First Amendment and Teaching


Some folks reading Diane Ravitch are appalled that New Mexico has written into law a new “gag” rule forbidding criticizing state tests or talking to parents about opting out. Calls are being made for the ACLU to involve itself, etc., etc. I abhor laws like this, but they are not new. We’ve had prohibitions on “soliciting” opting out of testing by teachers to parent in the Ed Code of California since before I started teaching. The case law limiting the free expression of public employees including teachers is not a new thing. The direction has been getting better in the courts, especially in the area of whistle-blowing.

Last year, the Supreme Court in Lane v. Franks, that NEA was involved in that dealt with whistle-blower rights. Earlier case-law says that public employees (like teachers) do not have the same First Amendment rights to criticize the state because they are, essentially, criticizing their employer. This carved out an exception for whistle-blowers.

The Pickering case gives one pause in how limited your free-speech rights can be as a teacher (or other public employee). Imagine getting called out for giving comment at a school board meeting about some aspect of your job or something going on in your district. About your only fall back would be to claim retaliation for doing a “concerted activity” as part of a union. That means you want to pick what you say and where you say it with caution. My local is aware of my blogging activity and while they are my opinions, they are meant to generate a more informed union membership, and public. I try to stick to the facts, and focus on issues of larger concern (both locally and globally) around education. This makes me fairly comfortable with what I’m saying, but I also realize I may end up being a “test case” some day for airing my views. It’s worth it to me.

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