TEACHERS AND THE FIRST AMENDMENT

Erin O'Connor has been following the story of Jendra Loeffelman, a teacher from Crystal City, Missouri who recently lost her job over some remarks she made made to her eighth-grade students concerning interracial marriages. Precisely what Ms. Loeffelman said depends on whose story you choose to believe. Both sides agree that Ms. Loeffelman told a group of her eighth-grade students that she disapproved of interracial marriage, and that she feared that children of such marriages would be persecuted. According to Loeffelman, that's pretty much all she said. According to some of her critics, however, Loeffelman also said much worse things than that.

 

Given the uncertainty as to what exactly Ms. Loeffelman said, and even under what circumstances (was it an innocent question, or a deliberate set-up by students who wanted to get her in trouble?), I can't pretend to know whether the school district's decision to fire Loeffelman was appropriate. Nor can I pretend to know whether they were acting within their legal rights in so doing, as I have not seen their collective bargaining agreement. I am a little troubled, though, by the efforts of some to constitutionalize this issue. Take, for example, this following quotation from the attorney of a fifth grade teacher who was fired in 1997 for straying from the curriculum:

Teachers don’t lose their First Amendment rights because they’re teachers. There’s not a special rule for teachers - not even fifth-grade ones.

Except that this is exactly what the lawyer is asking for: a special rule for teachers. The rest of us - probably including the lawyer himself - have no First Amendment "right" to continued employment with anybody. Most of us could get fired for expressing a constitutionally protected opinion that alienated our employers; this guy got fired simply for blogging, period. 

So why should the rule be any different for public school teachers? The easy answer is that public school teachers work for the government and the government, unlike a private employer, has to abide by the First Amendment. The not-so-easy - but more likely correct - answer is that this can't be right; governments make political hirings and firings all the time. This is because the First Amendment only requires viewpoint-neutrality when it comes to providing a forum where others can speak; it does not require such neutrality when the government itself is the one doing the speaking. Every time a public school teacher goes in front of a classroom, the government speaks. The only reason teachers cannot be fired for the same reasons that the rest of us can is that their union is strong and has managed to negotiate terms the rest of us can't (and probably shouldn't) get. 

To illustrate further why it's a bad idea to view this issue as a constitutional one, recall the discrepancies between the two accounts of what she said. Maybe Ms. Loeffelman merely stated that she personally disapproves of interracial marriages and worries that other people, not her, are likely to persecute their offspring, or maybe she said some incredibly inflammatory things, including a call for sterilization. If Ms. Loeffelman's situation is treated as an H.R. issue, that distinction could make all the difference. But it can't make any difference if the whole thing were reduced to the First Amendment, which provides just as much protection to a statement like "I support forced sterlizations of interracial couples" as it does to a more innocuous "I personally oppose interracial marriages, but who am I to judge?"