Teacher Speech: Pickering in the Courts

Samantha Cripe

Abstract


Teachers walk a fine line every day they enter the classroom and speak about controversial topics. Academic environments, however, should be a place where students and teachers feel comfortable to express unpopular viewpoints. Controversial topics such as race and racial discrimination could threaten teachers’ speech and the way these issues are presented in the classroom. This research reviews teacher speech cases in both secondary and post-secondary education, identifies where courts have inconsistently applied legal precedent, and recommends a framework that mirrors the well-established parameters for protected student speech. The courts have used Pickering v. Board of Education 391 U.S. 563 (1968) to create the Pickering test, which requires that protected teacher speech must first be speech that is related to matters of public concern, and second, that the speech not outweigh the school’s pedagogical interests. This test does not allow courts to consider the wide breadth of teacher speech because Pickering was decided based on prior defamation cases, not public employee speech. Since the Supreme Court’s 2006 decision in Garcetti v Ceballos, teacher speech has been regarded as public employee speech. Garcetti held that any speech made while performing formal duties as a public employee is not protected speech. Since 2006, the lower courts have inconsistently applied the Pickering test and the Garcetti case. A more comprehensive legal test is needed, one that defines educational interest, and views schools as a “marketplace of ideas” where teachers are protected as facilitators of that exchange. This conclusion is based on a review of legal cases and law journals.

Keywords


Legal Rights; Teacher Speech; Pickering Test

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