30 J.L. & Educ. 1 (2001)
Balancing Act: Teachers' Classroom Speech and the First Amendment

handle is hein.journals/jle30 and id is 11 raw text is: Balancing Act: Teachers' Classroom Speech
and the First Amendment
KAREN C. DALY*
ABSTRACT
In the absence of any Supreme Court precedent squarely address-
ing the scope of public school teachers' free speech rights in the
classroom, lower federal courts and state courts have been forced to
rely on the precedents established in either Pickering v. Board of
Education or Hazelwood School District v. Kuhlmeier. This article
discusses how the inadequacy of these precedents in cases involving
classroom speech by teachers has fostered doctrinal unpredictabili-
ty and inconsistency. The failure of courts to articulate clear stan-
dards governing teacher speech has encouraged local school boards
and administrators to micro-manage the educational process, deter-
ring teachers from employing creative classroom techniques or dis-
cussing controversial topics and creating negative implications for
student learning. This article proposes a judicial standard that
emphasizes adequate notice to teachers when certain speech is pro-
scribed and scrutinizes school board actions when speech contro-
versies arise to ensure that a teacher has been disciplined for reasons
of legitimate pedagogy rather than political expediency.
INTRODUCTION
The extent to which public school teachers enjoy free speech rights in the
classroom is one of the more contentious areas of First Amendment jurispru-
dence. The question of who controls or should control what children learn is
politically charged. Courts find it extremely difficult to balance the competing
interests presented by school boards, school administrators, teachers, parents
and students, all of whom have a valid stake in the educational process.
Currently, courts rely on either the precedent established in Hazelwood' or
Pickering 2 to resolve cases addressing the First Amendment protection accord-
B.A. George Washington University, 1997; J.D. Harvard Law School, 2000; Litigation Associate,
Wilmer, Cutler & Pickering.
1. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1987).
2. Pickering v. Board of Educ., 391 U.S. 563 (1968).

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