Teaching and the First Amendment

Let's keep our freedoms straight

In the current furor over what gets taught in classrooms, appeals are often made to the First Amendment. Academic freedom—the right of teachers to say what they want in the classroom and, to a lesser extent, to write and publish what they want—is said to be protected by the First Amendment.

It is not. The First Amendment has nothing to do with what is taught in the classroom. Academic freedom has an entirely different foundation.

Teachers do have First Amendment rights, but no more than any other people in any other line of work. Telling crude jokes is protected by the First Amendment, which is to say you can't be jailed for it. But such speech is grounds for dismissal in many workplaces. Amazon workers can't be prosecuted for declaring Jeff Bezos a greedy megalomaniac, but if they do so persistently on the job, they can probably be fired. 

Most jobs in America presume an agreement between employer and employee. The employer states the terms of the job, and the employee, by taking the job, accepts them. Some workers sign contracts guaranteeing their remaining in the job for a particular length of time and binding their employers not to change the terms during that time. But in most jobs workers are free to quit whenever they want, and employers are free to modify pay rates and working conditions even at the expense of workers. Workers can accept the new terms by staying on the job, and can reject them by quitting. 

Constraints have been placed on employers in certain categories. They can't discriminate among workers on the basis of race, gender, age, disability or sexual orientation. Unionized workers win protection of various kinds through collective bargaining. Civil service laws provide similar protection to many government workers. Academic tenure narrowly restricts grounds for termination of professors. Article Three of the Constitution gives life tenure to federal judges.

Teacher, as teachers, are simply another group of employees. Whatever rights they have as teachers are the result of workplace agreements. If the agreements forbid school boards from using political opinions as cause for termination, the teachers enjoy freedom of political speech. If the agreements do not have such a clause, political dissent in the classroom might well get them fired. In either case, the First Amendment doesn't apply.

This is not to say academic freedom is unimportant. In fact it is crucial to any responsible system of education.

But in discussions of academic freedom, it's essential to get straight whose freedom we are talking about.

Academic freedom exists not for the protection of teachers but for the benefit of students. The point of academic freedom is not to defend the right of faculty to say what they please; it is to defend the right of students to hear what displeases powerful people.

In public schools and public universities, the bounds of academic freedom are set by elected officials, sometimes acting through appointed regents and administrators. For this reason the boundary-setting is political in ways it is not in private schools and colleges.

And so the appropriate response for those who value open discussion in the classroom is political—rather than juridical, as by a misguided and hence feckless appeal to the First Amendment. This route is hard, and the battle is never definitively won.

Yet it has the advantage of shifting the argument from what is good for teachers to what is good for students. Most voters’ families include students at some point; comparatively few include teachers (and still fewer include college professors).

But at the same time it requires teachers to consciously refrain from doing what those who would limit open discussion accuse teachers of doing, namely proselytizing for political viewpoints in the classroom.

Some teachers will find this difficult, believing that their viewpoint is right and that the wrong viewpoints of others must be opposed. But most teachers will remember that our job is not to produce intellectual clones of ourselves, not to create conservatives or progressives, racists or anti-racists. It is to help young people become independent-minded adults able to draw their own conclusions about the world. 

The insufferably political on both sides will disagree with this mission statement, contending that young people cannot be trusted with their own minds. But most even of these will be too embarrassed to say so. As well they should be.