December 20, 2006

Proselytizing teachers

Tina Kelley's New York Times story about David Paszkiewicz's proselytizing in a high school class has raised a number of questions about the First Amendment and whether a teacher's academic freedom should trump parental concerns that their children not be subject to inappropriate pressures outside the curriculum. Let me cut to the chase: what Paszkiewicz did (which was apparently caught on tape—see the transcript) is inappropriate, but my entirely non-legal view is that it's not a First Amendment issue until his supervisors know of it and do nothing. It's the point when the student or parents complain that the school's responsibility really starts. Myth-fact time...

Myth: Academic freedom doesn't exist for K-12 teachers.
Fact: Legally, K-12 teachers generally have fewer rights than courts will recognize, except those written into collective-bargaining agreements. I don't know of any K-12 union contract that has the type of language on academic freedom that mine at a university level does. But K-12 teachers have some substantive rights in the classroom; see Daly, Schall, and Skeele, eds., Protecting the Right to Teach and Learn (2001), as well as a 1999 article by John Strope, for a broader discussion.
Myth: Academic freedom allows teachers to proselytize.
Fact: Ha! Er, um, let me expand a bit on that. Teachers have wide latitude in the classroom in instructional methods and what they teach, and they're allowed to be devil's advocates in all sorts of situations. (I push the argument for vouchers when I get a class when everyone is dead-set against vouchers, argue against them when everyone is for, and in general take a contrary position whenever the class opinion clearly needs challenging.) Furthermore, in many ways it's foolish to micromanage a classroom; in that regard, John Wilson is correct that one of the reasons for academic freedom is "not because we like teachers to be so stupid, but because the dangers of trying to restrict such comments are substantial." On the other hand, that doesn't give either K-12 teachers or higher-education faculty free reign. Minor goofs are one thing. Behavior that actively interferes with students' rights or ability to learn is something entirely different.  The position of that dividing line is debatable, and the conditions for examining what happens in the classroom are up for discussion, but the line and those conditions exist.
Myth: It's (il)legal to record your teacher as evidence about alleged teacher misbehavior.
Fact: The legal standing of such recording depends on state law. The controversy over Paszkiewicz's actions is only the latest example of what Inside Higher Ed's Scott Jaschik has called the YouTube effect. University of Florida management lecturer John Hall was caught on tape apparently stoned (though he was recorded through a university program that he knew about, not by a student), and Orange Coast College teacher Kenneth Hearlson was vindicated (after considerable pressure) when the tape a student made in an attempt to incriminate Hearlson turned out not to have the events that the complaining students alleged.
Myth: The teacher was violating the First Amendment when proselytizing.
Fact: Here's the tricky bit: Is a public-school teacher an employee of the state or The State when teaching? Remember that teachers have the ordinary right to free expression when not "on duty" as a teacher as well as some rights in the classroom that distance the teacher from being The State -- so, for example, a Prostestant teacher is not required to take off a necklace with a small cross when starting his or her day. In addition, teachers are human beings, and for us to insist that classroom K-12 teachers keep straight when they are Acting As the State and acting as an individual is an unreasonable expectation. Much saner: the school district and school are part of the state and responsible for having policies that follow the First Amendment and supervising teachers. Following those policies or principal's directives is what the teacher is responsible for.
Myth: Was there a violation of the First Amendment?
Fact: According to both sides, the teacher stopped proselytizing when the administration directed that it stop.

Why is the LeClair family suing the school district, if the teacher stopped proselytizing? From father Paul LeClair's discussion forum explanation November 26, I infer there are two possible reasons: the student asked for an apology (an acknowledgment that the behavior was wrong) and never received it, and the student reported verbal retaliation by the teacher.

The teacher's response was to stop the behavior (he had no choice), but no apology. On the contrary, he started making remarks in class that were directed against Matthew, though at that time none of the other students knew what had happened. All they knew was that something was different. Had the teacher responded appropriately and had appropriate corrections been made, that would have ended the matter.

If the retaliation is documented, that's the worse thing for the school district to allow. And technically, I suspect that Matthew LeClair would have had a greater claim (and probably more chance of success) requesting that the administration acknowledge that proselytizing was wrong and stating clearly that it would not allow further proselytizing or retaliation. I'm curious, though, why Paul LeClair didn't write a cease-and-desist letter to the district. That usually comes before a lawsuit, and it's often effective.

Update: Paul LeClair notes that they have not (yet) sued. Listen to this article
Posted in Academic freedom on December 20, 2006 6:08 AM |