Protecting Academic Freedom in the 21st Century

 

William J. Stegmayer

Academic freedom for teachers in the public schools may be defined as the freedom of teachers to have primary control over the delivery of instruction, short of employing practices that jeopardize student physical or emotional safety. By this definition, teachers are entitled to promote student examination of issues by exercising their professional judgment when teaching. Still, while educational sociologists from Waller to Lortie describe the classroom as peculiarly the domain of teachers’ influence and control, teachers tend to be conservative in their judgment of teaching controversial issues.1

The nature and quality of academic freedom in public education is a significant interest of teachers as it is central to the act of teaching. It is of particular importance to social studies education where a large body of literature supports the concept of controversial issues as a cornerstone of a social studies teacher’s professional responsibility.2 The fact that social studies deals with controversial issues makes it more vulnerable to threats to academic freedom than any other subject.3

Although the right to teach, to inquire, and to study is fundamental to a democratic society, academic freedom is not one of the enumerated rights of the First Amendment of the Constitution. That speaks to some questions about its legal status, but does not deny its moral and professional status. So how much freedom does a public school teacher have to deliver instruction in the classroom? Take the following short quiz to test your understanding of a teacher’s academic freedom to exercise professional judgment in examining controversial issues and using controversial materials and methods in the classroom.

 

The Situations

Directions: Using the five possible outcomes listed below, respond to each of the situations twice by placing the number of your response on the line provided. First, respond on the basis of how you perceive a school district would act, and second, respond on the basis of how you perceive a school district should act, in each situation. In each situation, place yourself in the role of the teacher and assume that you are tenured. The response choices are

1. You are suspended and formal charges are filed.

2. You have a formal written reprimand placed in your personal file.

3. You receive a verbal reprimand and a caution that you will be carefully observed in the future.

4. You receive suggestions from the administrator relating to the situation.

5. Your conduct is acceptable and no action is taken.

 

Situation One: As a high school teacher in charge of an advanced acting class, you select a play for four students to perform in an annual statewide competition. The play depicts a family that includes a divorced mother, a lesbian daughter, and a daughter pregnant out of wedlock. You notify the principal of the play you have chosen and get parental permission for the four actresses to perform in the play. Prior to the state finals competition, a scene from the play is performed before an English class in your school. You inform the English teacher that the play contains mature subject matter and suggest that the students bring in parental permission slips to see the play. Following that performance, a parent of one of the students in the English class complains to the school principal.

 

Response Number

How would the school

act in this situation? _________

 

How should the school

act in this situation? _________

 

Situation Two: As a high school teacher teaching logic and debate to 17- and 18-year-old seniors, you show a film rated “R” by the Motion Picture Association to your class without notifying the principal. The characters in the film use profanity and some scenes contain violence and nudity. You preview 15 to 20 minutes of the film with the students, ask them if they want to proceed with viewing the film, and offer alternate assignments in the library for anyone who is disturbed by the film’s graphic realism. Although no students go to the library, one student complains at home and the parent phones the principal.

 

Response Number How would the school

act in this situation? _________

 

How should the school

act in this situation? _________

Situation Three: As a high school English and journalism teacher, you employ a student-centered teaching method that requires you to allow students creative freedom. In your junior English class, you divide the students into small groups and direct them to write short plays to be performed for the other students in the class and videotaped. The plays written by the students contain profanity (e.g. four-letter obscene words), which you allow in the context of creative expression in the classroom. Several months later, as the result of complaints by one of your students, the videotapes come to the attention of the principal who initiates an inquiry into the matter.

 

Response Number How would the school

act in this situation? _________

 

How should the school

act in this situation? _________

 

Explanations of the Situations

Several studies examining controversial situations in public school classrooms have found that teachers hold perceptions of academic freedom apart from those they perceive the school to hold.4 Teachers perceive that the school would act in a significantly less tolerant manner to the study of controversial issues and the use of controversial materials and methods in the classroom than they perceive the school should act. These perceptions, combined with court decisions restricting teachers’ actions in some areas, can have a chilling effect on a teacher’s freedom to teach and a student’s freedom to learn. Providing rationales for the concept and support for the exercise of academic freedom in precollegiate education are necessary intellectual and professional goals, but courts have not always provided clear decisions on the limits of academic freedom. All three of the above situations are actual cases that have recently been adjudicated in the courts. The following explanations outline the actions of the school and the outcome of each case. Compare these outcomes with your would and should responses.

Situation One: Margaret Boring was a high school teacher in charge of an advanced acting class in Buncombe County, North Carolina. The play she selected, Independence, won second place when performed by her students in the state competition. At the completion of that school year, Boring received a transfer from the high school, where she had taught for 12 years, to a middle school. The rationale for this transfer was cited as “personal conflicts resulting from actions she initiated during the course of the school year”and failure “to follow the school system’s controversial materials policy in producing the play.” Boring sued to get her original position back based on her right to freedom of speech under the First and Fourteenth Amendments, but lost in both the district court and the U.S. Court of Appeals for the Fourth Circuit.5

The sole issue in this case, as stated by Judge Widner in the majority opinion, “is whether a public high school teacher has a First Amendment right to participate in the makeup of the school curriculum through the selection and production of a play.” The courts held that Boring did not. Citing Kirkland v. Northside, the Fourth Circuit Court wrote, “Although the concept of academic freedom has been recognized in our jurisprudence, the doctrine has never conferred upon teachers the control of public school curricula,” and, “[w]e hold only that public school teachers are not free, under the First Amendment, to arrogate control of curricula.”6

 

Situation Two: Alfred E. Wilder was a teacher with a 25-year teaching career in the Jefferson County, Colorado, school district when the board of education fired him midway through the semester for his failure to follow the district’s controversial materials policy prior to showing the film 1900 to his logic and debate class, and for not fulfilling his official responsibilities. Wilder sued, claiming that the dismissal violated his constitutional rights of free speech and due process.

Wilder’s case reached the Supreme Court, State of Colorado, which held by a four to three vote that the board of education rightfully dismissed Wilder.7 Citing State Board v. Olson, the high court rejected Wilder’s claim to the principle of academic freedom found in the First Amendment.8 “[I]n primary and secondary schools the principle of academic freedom must be balanced by the countervailing interests of the state in inculcating basic community values in students who may not be mature enough to deal with the educational process as understood at higher educational levels.” The high court found that as a teacher, Wilder had no rights of free speech and due process guaranteed by the Constitution when he failed to “follow an established procedure permitting publicly accountable school officials, and not individual teachers, to exercise final authority over the curriculum being presented in the classrooms…” The court held, moreover, that “the policy neither ‘chills’ the First Amendment rights of teachers in the District nor otherwise burdens their constitutionally protected speech…”

 

Situation Three: Cecilia “Cissy” Lacks, after 23 years in a Missouri school district, was fired midyear for a “willful and persistent” violation of board policy requiring teachers to enforce the section of the student discipline code that prohibits profanity. When Lacks brought suit against the school board’s decision, a federal district court returned a verdict in her favor. The school board appealed the district court’s decision, and the Eighth Circuit Court of Appeals, in a unanimous decision, reversed the lower court and upheld Lacks’s dismissal.9

The Court of Appeals cited the Supreme Court, in Bethel School District v. Fraser, in saying “schools must teach by example the shared values of a civilized social order.”10 The judgment in Lacks’s favor by the district court was reversed when the appeals court ruled that, as a matter of law, the school board had the right to prohibit “classroom profanity in any context, and it provided Lacks with enough notice of its disciplinary policies.”

 

Though there were dissenting opinions in two of the three cases (Boring and Wilder), these decisions indicate that although controversial issues, materials, and methods may enlighten and inspire students, they can also get teachers fired. K-12 classroom teachers would do well to review these damaging decisions when considering how the defense of academic freedom will protect them from challenges in examining controversial issues and in using controversial materials and methods in the classroom.

It is wise for teachers to note that the courts do not always decide academic freedom claims against teachers. In a landmark decision, Tinker v. Des Moines, the Supreme Court ruled that “First Amendment rights . . . are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate.”11

Opinions from lower courts have dealt more specifically with teacher use of content, materials, and strategies. In Mailoux v. Kiley, a secondary school teacher dismissed by the board of education for “conduct unbecoming a teacher” was reinstated by the district court.12 The court upheld two kinds of academic freedom: the “substantive right” of a teacher to choose a teaching method that serves a “demonstrated” educational purpose and the “procedural right” of a teacher not to be discharged for the use of a teaching method that is not prohibited by clear regulation. In Hosford v. Sandwich, an untenured teacher of special needs children was dismissed for her handling of sexual topics with three 13-year-old boys.13øThe court ordered the board to reinstate Hosford, indicating that precollegiate teachers have enough academic freedom to use their professional judgment in areas where they are encouraged to be creative and certain techniques are not prohibited.

The courts have attempted to balance the rights of teachers, students, communities, and states. In doing so, they have preferred to view each case individually and to treat academic freedom for public school teachers as a special First Amendment right that provides protection to teachers when conflicts arise over what should be taught and how it should be taught.14

Some suggestions for examining controversial issues in the classroom while balancing the rights of teachers, students, communities, and states are offered here.

 

Suggestions for Teachers

 

Policy Statement on Academic Freedom

Teachers, considering the ideas of administrators and community members, should develop a policy statement on academic freedom for the board of education to include in its documents. The policy should be clear, unambiguous and without qualifying or conditional statements. The National School Boards Association (NSBA) and most state school boards associations have policy statements on academic freedom and on teaching controversial issues that can be used as references. Beyond board approved policy statements on academic freedom, local education associations might consider negotiating an academic freedom clause in the master contract. Arbitration decisions in several cases have upheld teachers’ instructional decisions to show R-rated movies based on contractually guaranteed academic freedom as stated in a clause of the collective bargaining agreement.15

 

Comprehensive Written Policy on Selecting Materials and Handling Challenges

Every school system should have a comprehensive written policy for the selection of all instructional materials and a set of procedures for handling challenges. These policies and procedures should be the product and charge of a broadly representative panel including administrators, teachers from different disciplines and grade levels, parents, students, and members of community associations. Such policies and procedures will help define the goals of the school, provide a format for the resolution of challenges, and raise a red flag on issues and materials that school and community members might find offensive.

 

Written Rationale for Teaching

Controversial Issues

Teachers should develop written rationales for controversial issues, materials, and methods being employed in the classroom. Donelson states that written rationales force teachers to think and write in support of their teaching decisions and to have their writing made available to the public.16 Written rationales ensure that teachers understand and can articulate in clear and forceful prose the relationship between the controversial issues, materials, and methods used and the course being taught. Additionally, complainants should submit their challenges in written form. As with written rationales, this requirement forces complainants to think through their concerns, specify objectionable items, and recommend action. Written challenges are far more likely to result in procedures being followed than are oral complaints.17

 

Resource Packet for Defending Academic Freedom

Teachers should have a resource packet of people and organizations to contact in regard to academic freedom issues. Some organizations that have academic freedom policy statements are The American Library Association, National Education Association, American Federation of Teachers, National School Boards Association, National Council for the Social Studies, National Council of Teachers of English, International Reading Association, People for the American Way, American Association of University Professors, and the American Civil Liberties Union. These groups also issue position statements, pamphlets, manuals, newsletters, and annual reports on academic freedom and controversial issues, materials, and methods in precollegiate education. Membership in these organizations provides teachers with up-to-date information on their academic freedom rights and opportunities to attend conferences and workshops on the topic. Some of these organizations provide legal support for teachers whose freedom to teach is challenged.

 

Conclusions

The struggle for academic freedom is never over, nor can teachers expect someone else to fight the battles. The suggestions in this article do not present a comprehensive list of resources and procedures, but rather indicate that teachers who are challenged on their instructional decisions are not alone and can defend their academic freedom. Clear district policies and procedures can avoid and mitigate many problems. In more stubborn cases, teachers have recourse in the courts, and they can find support and assistance from groups and organizations inside and outside the school district.

Academic freedom is not a completed narrative with a beginning and conclusion, but an open-ended story of success and failure, like democracy itself. A teacher’s academic freedom and a community’s right to prescribe an appropriate curriculum, a student’s right to learn whatever s/he wants and a parent’s right to shield his/her child from potentially harmful ideas; these forces will continue to argue over crucial ideas regarding the freedom to teach and the freedom to learn and over the free flow of information in the classroom. In this tension, it remains the responsibility of the teacher as a professional to ensure that all students have opportunities to participate in the full and fair examination of social problems so that they will gain “that kind of intelligent citizenship that is genuinely free to take part in the social reconstructions without which democracy will die.”18 To fulfill this obligation, teachers need to understand the concept of academic freedom and to be able to articulate its meaning and expression. Academic freedom is not the only important concept in teaching and it might not be equivalent to “good teaching,” but without it the preservation of democratic education is impossible.

 

Notes

1. Donal M. Sacken, “Rethinking Academic Freedom in the Public Schools: The Matter of Pedagogical Methods,” Teacher College Record 91, no. 2 (1989): 235-255.

2. Shirley H. Engle, “Decision Making: The Heart of Social Studies Instruction,” in Byron G. Massialas and Andreas M. Kazamias, eds., Crucial Issues in the Teaching of Social Studies (Englewood Cliffs, NJ: Prentice-Hall, 1964), 301-304; Maurice P. Hunt and Lawrence E. Metcalf, Teaching High School Social Studies: Problems in Reflective Thinking and Social Understanding (New York: Harper, 1968); Jack L. Nelson and William B. Stanley, “Academic Freedom: 50 Years Standing Still,” Social Education 49, no. 8 (1985): 662-666; Ken Carlson, “Academic Freedom in Hard Times,” Social Education 51, no. 6 (1987): 429-430; Grace Mitchell, Sam Evans, James K. Daly, and Patricia B. Roach, “Academic Freedom and the Preparation of Social Studies Teachers,” Theory and Research in Social Education 25, no. 1 (1997): 54-66.

3. Jack L. Nelson and Anna S. Ochoa, “Academic Freedom, Censorship, and the Social Studies,” Social Education 51, no. 6 (1987): 424-427.

4. David Naylor, An In-Depth Study of the Perceptions of Public School Educators and Other Significant School Related Groups Concerning Aspects of Nationalistic Instruction (New Brunswick: Unpublished doctoral dissertation, Rutgers University, 1974); William J. Stegmayer, Preservice Teachers’ Perceptions of Academic Freedom (New Brunswick: Unpublished doctoral dissertation, Rutgers University, 1999).

5. Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir. 1998).

6. Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir. 1989).

7. Board of Education of Jefferson County School District R-1 v. Wilder, 960 P2d 695 (Colo. 1998).

8. Colleges and Occupational Education v. Olson, 687 P.2d 429 (Colo. 1984).

9. Lacks v. Ferguson Reorganized School District R-2, 936 FSupp 676 (8th Cir. 1998).

10. Bethel School District v. Fraser, 478 U.S. (1986).

11. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

12. Mailloux v. Kiley, 323 F.Supp. 1387 (D Mass.) affd, 448 F.2d 1242 (1st Cir. 1971).

13. Hosford v. School Committee of Sandwich, 659 NE 2d 1178 (Mass. 1996).

14. Ronald Dworkin, “We Need a New Interpretation of Academic Freedom,” Academe 82, No. 3 (1996): 10-15; Benjamin Sendor, “Academic Freedom Isn’t Just for Higher Ed,” The American School Board Journal (June 1996): 12-13.

15. Department of Education and Hawaii State Teachers Association, 66 LA 1221 (Tsukiyama, arb. 1976).

16. Ken Donelson, “Ten Steps Towards the Freedom to Read,” in John S. Simmons, ed., Censorship a Threat to Reading, Learning, Thinking (Newark, DE: International Reading Association, 1994), 231-242.

17. Dianne M. Hopkins, “Put It in Writing: What You Should Know About Challenges to School Library Materials,” School Library Journal (January 1993): 43-49.

18. John Dewey, “The Social Significance of Academic Freedom,” The Social Frontier 2, (1936): 376-379.

 

William J. Stegmayer is social studies department supervisor and teacher at Tenafly Middle School in Tenafly, New Jersey.