In the Midst of the Storm: Know Your Teacher Rights
As we stand in the crosshairs of MAGA’s attack on K-12 education, the legal rights that protect educators’ ability to teach about liberation and justice depend on our collective political power to defend them. Many of our students are coming to school in a condition of extreme unsafety, with daily threats that the MAGA regime may abduct their parents, take away their medical care and their bathrooms, or assassinate their cousins abroad. The repression targeting teachers is aimed at creating a climate of fear to make teachers afraid to protect kids, and to make kids afraid to ask for what they need to learn.
Courage is as contagious as fear, and we are here to spread courage for our students. At the same time, we want our resistance to be strategic and sustainable. In that spirit, this article provides an overview of students’ and teachers’ free speech rights in and out of the classroom. Please keep it close at school so you can share it with other teachers, administrators, and parents.
Students’ rights to free speech
Students actually have more free speech rights than K-12 teachers. This is important to understand as we develop strategies for social justice teaching these days.
As long as their speech is not disruptive in the classroom, students have the right to free speech. This is established by Supreme Court precedent, and codified in most districts’ local policies. Tinker v. Des Moines is a seminal 1969 case in which the US Supreme Court ruled that students could not be punished for wearing black armbands to protest the Vietnam War. Likewise students cannot be punished for expressing support for Black Lives Matter, Free Palestine, Trans Justice, etc.
Students’ rights to accurate information
Students should also have a First Amendment right to receive information. In some states, this right is established by binding legal authority. For example, the Ninth Circuit federal court in Arce v. Douglas ruled in 2015 that, a "state may not remove materials otherwise available in a local classroom unless its actions are reasonably related to legitimate pedagogical concerns." In some states, students’ right to receive information is not a legal right, but it is a persuasive educational principle that students should have access to information in order to learn and express their ideas.
This principle is important for teachers to lean into. When students are curious about current events, they have a right to learn, and you as the educator have a duty to give them accurate information, rather than censor the question. You can respond to false accusations that you have violated district policies by documenting your students’ questions and interest in learning about current events such as the genocide in Palestine or illegal deportations.
Curriculum that relies on original sources within critical thinking frameworks is protective as well as good pedagogy. Supporting students to consider sources through a critical literacy lens, separate facts from opinions, and question power relationships is good teaching. So is constructivist pedagogy, in which students are working with each other to develop analyses, reach conclusions, and suggest next steps.
Students’ rights to be free from anti-Palestinian racism, anti-immigrant hysteria, transphobia, and other aggressions
Schools may be in violation of civil rights laws like Title VI of the Civil Rights Act and similar state statutes if they censor learning about the history and experiences of people who have been discriminated against, including Palestinians, LGBTQ+ folks, and people of color. Schools are legally responsible for making sure that students have a right to access equal education free from discrimination based on race, ethnicity, and national origin.
So, for example, when Palestinian students experience genocide denial or watch their teachers be punished for supporting Palestinian human rights, they are forced to learn in a hostile environment that limits their ability to access an equal education and violates their rights. When a school district punishes teachers for teaching accurate Palestinian history—or other histories such as Native American, Black, etc.— teachers should assert that the district is discriminating against students by creating a discriminatory and hostile environment that limits their right to learn.
Unfortunately this same law—Title VI—is a tool for people who wish to censor education about race and colonial conquest. In response to relentless false accusations that teaching Palestine makes Jewish students “feel unsafe” in violation of Title VI, school administrators have investigated, censored and disciplined teachers for including Palestine in their classrooms. Other educators have been fired for teaching about Reconstruction on the theory that talk about racism makes white children “feel guilty.”
But this is an abuse of discrimination law, and confuses “safety” with “comfort.” Feeling uncomfortable with new ideas is not the same as being unsafe. Palestinian children, immigrant children, trans children, children of color—they are objectively unsafe in today’s reality. Children facing ideas that are new to them are challenged. That’s very different.
Students should assert Title VI and similar anti-discrimination protections as a tool to push back against censorship and ask for an education that addresses the social justice issues relevant to their lives.
Do teachers have free speech rights? It depends. [1]
The First Amendment protects teachers’ speech if you are speaking as a private citizen on a matter of public concern—unless your speech disrupts your ability to teach. In a 1968 Supreme Court case, Pickering v. Board of Education, the court ruled that a high school teacher could not be terminated for writing a letter to the editor criticizing the administration of the school district. The court said this was a matter of public concern, and the teacher’s speech was protected. The Ninth Circuit court applied this rule in a 2022 case deciding that a school district in Washington could not prohibit a teacher from wearing a MAGA hat to a professional development training. The court found that the district could not tell the teacher to remove the hat as the speech was protected because the hat conveyed a message of public concern, and they were acting as a private citizen. As long as speech is not harmful or disruptive to the workplace environment and it occurs during non-instructional time, there is no legitimate reason to restrict it. (Dodge v. Evergreen Sch. Dist. #114)
The Third Circuit court applied the same rule to a case in Pennsylvania, finding that a teacher’s speech outside the classroom was “disruptive” (and thus punishable) because the teacher made derogatory comments about her students in a blog post. The fact that numerous parents told the school district that they "don't want her as my child's teacher" was enough to conclude that the speech impeded the performance of the speaker's duties as a teacher, interfering with the regular operation of the school.(Munroe v. Central Bucks Sch. Dist., No. 14-3509 (3d Cir. 2015))
What speech is "disruptive" and what can be used to punish or censor teachers? This is subjective, and a matter of political power to define “educational” versus “disruptive” speech. Seeking to avoid controversy, school districts are inclined to allow bigoted parents' to gatekeep what can and cannot be said. This is known in free speech doctrine as a “heckler’s veto.” That’s where organizing and solidarity become critical. We need to make it clear that caving to bigots doesn’t lead to peace for administrators—support for all our students and the entire school community is the only road to peace.
Inside the instructional setting, districts can determine and control curricula.
Teachers’ speech inside the K-12 classroom is not “free,” but rather controlled by the districts’ determinations about what topics should be addressed and how. State standards are the place to start here. Start with what you know your students need to learn, and then look for the relevant standards.
Free speech in K-12 classrooms is supposedly protected by extensive case law and state policies, with flowery quotes about the importance of free speech in schools as essential to a learning environment and the marketplace of ideas. The US Supreme Court wrote in a seminal 1967 case, Keyishian v. Board of Regents:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of authoritative selection." United States v. Associated Press, 52 F. Supp. 362, 372.
A federal judge in California recently dismissed a lawsuit attempting to censor Ethnic Studies curriculum that included Palestine, reinforcing these bedrock legal principles:
“[W]e must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.” Id.; see also id. (Although “teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority,” “teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities.”) Concerned Jewish Parents and Teachers of Los Angeles, et al., v. Liberated Ethnic Studies Model Curriculum Consortium, et al.
However, what this means and how it is applied is a question of political power, so it depends on the political climate in a particular district and/or state, the power of the rightwing, and the strength of the progressive movement.
Hate speech policies:
Virtually every district across the country has a policy prohibiting hate speech. It will have language explaining that classroom discussions cannot reflect adversely upon people for race, sex, orientation, national origin, etc. This conforms with federal anti-discrimination laws. This seems straightforward, but white supremacists and Zionists have severely distorted definitions of antisemitism and racism.
For example, there are white supremacist accusations that it reflects adversely on white students to teach about slavery. There are relentless accusations that it discriminates against Jewish students to teach about the Israeli genocide against Palestinians. Districts and teachers are often sensitive to these accusations, and respond by censoring and self-censoring anti-racist curriculum.
In terms of teaching about Palestine, this means every educator who teaches Palestine also needs to educate district officials and families about antisemitism and anti-Palestinian racism from a perspective of collective liberation—understanding the distinction between anti-Zionism and antisemitism, and being ready to articulate that none of us are free until we are all free.
Controversial issues policies:
Many districts have a policy that addresses how “controversial” issues should be taught. The first question to ask here is: Who decides what issues are “controversial”? Is the district going to allow bigoted parents or politicians to determine what issues should be closely regulated? The second question is whether the district is applying its policies equally to all “controversial” issues. Are Black Lives Matter signs encouraged while Free Palestine signs are censored? As frightened universities and school districts race to eliminate any pretense of caring about racism in the face of Trump regime threats, this is rapidly changing terrain. However, it is anti-Palestinian racism— a form of illegal national origin and ethnicity discrimination—for a school district to single out Palestine as the only issue for scrutiny. This communicates to students that Palestinians and their perspectives are controversial or dangerous by nature, a disparaging stereotype that unlawfully limits their ability to access an equal education.
Prohibiting political activity policies.
It’s also typical for schools to prohibit teachers from engaging in political activity in the classroom. This policy is reasonable on its face, but it becomes a tool for censorship when it’s applied unequally to speech about Palestine in situations in which teachers are permitted to engage politically on other issues, like climate activism, without scrutiny. Again, it is unlawful discrimination for a district to single out Palestine, Black lives matter, or trans rights as the only political activities it bothers to actively enforce. This is another area in which it is especially important to make sure that children and youth take the lead in determining what political issues they want to address and how they want to address them. Our responsibility as educators and mentors is to be supportive and protective.
Digital Security
Please be aware of what’s on your school/district/university computer and other electronics. Be sure to give political organizations (including CLES!) and mailing lists personal email addresses and phone numbers, not institutional ones. Do research and draft lesson plans, statements, etc. on your personal computer. Here’s a link to more information about digital security.