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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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