First Amendment Protection of Teacher Instructional Speech
Kuhn, Walter E., Duke Law Journal
Rarely is a constitutional controversy exemplified by a Hollywood actor and industrial hemp. Actor Woody Harrelson, of "Cheers" and "White Men Can't Jump" fame, visited tenured Kentucky fifth-grade teacher Donna Cockrel and her class on two occasions in 1996 and 1997 to discuss industrial hemp with the students. (1) He had prior official approval for the visits (2) and brought along an "entourage, including representatives of the Kentucky Hemp Museum and Kentucky Hemp Growers Cooperative Association, several hemp growers from foreign countries, CNN, and various Kentucky news media representatives." (3) The actor "spoke with the children about his opposition to marijuana use, yet he distinguished marijuana from industrial hemp, and advocated the use of industrial hemp as an alternative to increased logging." (4) He also showed the class products made from hemp and hemp seeds, a banned substance in Kentucky. (5) In July 1997, after the second visit and an uncustomary review of her teaching methods, (6) Ms. Cockrel was terminated by the school district, allegedly over concerns about her teacher performance. (7) On June 4, 1998, Ms. Cockrel filed suit in federal district court, claiming that she was terminated in retaliation for exercising her First Amendment right to free speech by inviting Mr. Harrelson to make a presentation about industrial hemp to her class. (8)
Although Ms. Cockrel ultimately prevailed when the Sixth Circuit reversed the district court and held her speech was constitutionally protected, (9) difficult issues remain. This odd set of facts raises a number of important questions. For example, how should the courts balance the right of teachers to speak freely as individuals with the right of schools to control their message to students? Who controls, and who should control, curricula development? To what extent should schools be allowed to homogenize, and teachers be allowed to personalize, curricula? How should the law arrive at the correct balance between exposing students to a diversity of ideas to stimulate independent thought, and impressing upon students lasting societal values? The stakes are high, as the answers to these questions implicate everything from the civil liberties of individual citizens in their roles as governmental functionaries, to the homogeneity of the government's message to students and democracy's need for young people to develop the ability to thing independently and follow societal norms.
This Note argues that the current tests for deciding cases involving First Amendment protection of teacher instructional speech are inappropriate, and that a hybrid test should be adopted. Part I discusses background issues and introduces the two precedents currently used to decide instructional speech cases, Hazelwood and Pickering. Part II describes the evolution of the Pickering test and analyzes its benefits and shortcomings. Part III similarly evaluates the Hazelwood test. Finally, Part IV advocates the use of a hybrid test to decide future instructional speech cases and explores the possible outcomes of such a test. This Note concludes that a hybrid test would expand teacher freedom in the classroom by applying different standards for content and process restrictions of instructional speech.
I. PRELIMINARY ISSUES
Although the Supreme Court has repeatedly held that public school teachers have First Amendment rights within the confines of the schoolhouse, it has never specifically addressed the degree of protection that the First Amendment provides for in-class instructional speech. (10) The protection of in-class speech implicates at least two competing interests: a teacher's right to expression under the First Amendment and a school system's right to set its curriculum and restrict the speech of its employees. (11) While teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," (12) nor does the state discard its interest in safeguarding its message by regulating the speech of its employees. …