Anne Gardner


This note will examine the legal basis and educational framework for First Amendment protection of classroom speech. The Supreme Court of the United States has not directly addressed the constitutional issues implicated in teacher classroom speech. As a result, the circuit courts are split in the application of an appropriate analysis.15 In most circuits, teacher curricular speech is not protected speech.' 6 Among the circuit courts, teacher curricular speech is governed by three competing doctrines: public employee speech, student speech, and academic freedom. 1 7 While the Fourth, Fifth, Sixth, and Seventh Circuits have applied the Pickering public employee analysis,' 8 the First, Second, Eighth, and Tenth Circuits have expanded the Hazelwood student speech analysis to include teacher curricular speech. 19 While the teacher, as speaker, is a public employee, the public employee speech doctrine does not fully account for additional protections that may exist within the classroom, nor does it fully account for the distinction between the government as employer and the government as sovereign provider of education. However, to analogize teacher speech with student speech disregards the different roles of students and teachers within the school environment. It is unclear whether academic freedom protections alluded to by the Supreme Court apply to elementary and secondary classrooms. Although the Supreme Court has applied the public employee speech doctrine to elementary and secondary teachers, the Court has applied the academic freedom doctrine almost exclusively to university professors and their institutions. Some circuit courts have based their decisions on academic freedom, but those decisions have laid dormant for over thirty years, ignored (but not explicitly overruled) as those circuits have applied the public employee or student speech doctrine to curricular speech. This note argues that teacher curricular speech occupies a unique position among protected speech, not fully accounted for by any of the doctrines currently employed. This argument is grounded in the educational and philosophical purpose of education and the methods by which that purpose can be achieved.

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