Tuesday, March 14, 2006

Jay Bennish's *First Amendment* Case? Please!

A lot of bandwidth has been devoted to the case of Jay Bennish, a Colorado high school teacher who was disciplined in relation to political comments he made in his social studies class recently. I though the issue had been fully exhausted when he was reinstated.

That is, I thought so until this morning. Then I encountered this piece by Julie Hilden at Findlaw. She argues, essentially, that public school teachers should be viewed as special public employees who should enjoy unfettered First Amendment protection in the conduct of their employment.

I take great interest in First Amendment liberty interests and I think the argument is load of bunk.

Hilden describes the state of current precedent on the speech rights of public employees. The short version is this: Pickering v. Board of Education upheld the rights of public school teachers to speak in their capacities as private citizens on matters of public importance (there, the operation of the local school system). Connick v. Myers, which she conveniently disregards as simply being about district attorneys, while upholding the termination of a recalcitrant D.A., notes:

Myers' questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers' discharge therefore did not offend the First Amendment.

* * *

[I]t would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment's safeguarding of a public employee's right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here.

The Bennish case falls somewhere between these two ends. Hilden apparently thinks it's beyond the farthest reach of Pickering; I think it falls closer to Connick.

(For those who are impatient: Does this mean that I think Bennish should have been fired for his in-class statements? Probably not. Keep reading.)

It oversimplifies the matter to say that Bennish was speaking as a citizen on matters of public import and that fact renders his speech free from any consequence. He is free to speak out, write letters to editors, attend and organize protests, and even publish manifestos -- on his own time. When he does so on the public's dime, then there must be some reasonable regulation of how he conducts his class. And the public, in my mind, may draw a line in the sand at ideological indoctrination.

Does this mean that teachers must present themselves as completely fair and balanced neutral? No. I recall having teachers with a wide array of political opinions. None of these teachers compelled us - explicitly or implicitly - to agree with them. Actually, now that I think about it, my government teacher never really expressed any opinions either way (though I always suspected that she leaned liberal).

If a teacher is to educate -- to teach students how to think critically -- then something resembling balance in the classroom is necessary. After all, each ideological perspective has its own shortcomings. If a teacher can not be honest about his own, then how can he expect his students to do the same if the end goal is truly to prepare students to think and speak critically for themselves.

That in mind, we must not forget that the public school teacher is entrusted with the education of minors, impressionable ones at that. It is an environment that is easily opened to abuses by those few ill-intentioned teachers who might seek to indoctrinate rather than educate.

The abuses of a single teacher, though, are not the first but the last reason why Hilden's "balance of experience" ideal is unworkable. After all, how many progressive civics teachers live in - let alone work in - Kansas or rural Utah? How many conservative civics teachers are there in Boston or Berkeley? Let's be honest: balance, of necessity, should be sought on the micro level.

Is it always easy to find, note, and evaluate the foibles of all competing viewpoints, particularly one' own? No, and I say this from some small experience, having taught essay writing during college and law school. Between Ann Arbor and Boston, I had no shortage of students whose views differed from my own. I gleefully ripped their essays to shreds, challenging them to push beyond the pat version of what they thought. Invariably, though, I would have in each class a student or two whose beliefs more closely reflected my own. I found even greater pleasure in dissecting their arguments, having said on a couple of occasions, "I agree with you, and yet you still have not convinced me." They knew I was being perfectly honest with them, and they generally pushed themselves that much more. It was not always easy; there will always be a temptation to be lazy and give a pass to those who agree with you. But that's not the standard we should embrace for our teachers. This is one point on which I agree with Hilden, but I don't see it as a justification for a broad blanket protection of all political speech by teachers in the classroom. There is some room for the enactment of reasonable parameters, and we should not foreclose that prerogative to school administrators and the electorates they answer.

In light of this, though, I have a hard time seeing the argument that Bennish should have been fired. Reprimanded (as he was)? Fine. Suspended? Maybe if the recording had been without any other mitigating content than what I will describe below. Fired? No. While Bennish's politics may (and I stress "may") fall on the fringe of the American spectrum, I think that he probably was acting in good faith and he is a young teacher (perhaps only a year older than I) and he might have pushed the envelope a little too far. However, the end of the recording does indicate that (in a single limited instance, at least) Bennish was not compelling his students to agree with him, undercutting (if only a little) charges of indoctrination. If it's nothing more than an inexperienced teacher getting a little carried away in his good faith effort, then that shouldn't ruin his career.

Legislatures and school boards have the power to grant great discretion to teachers and the way they conduct their classrooms. If they do so, I have no quarrel with that. But, as long as the state pays that teacher's salary -- effectively sponsoring that speech and stamping it with its own imprimatur -- I can not agree that a teacher's First Amendment rights are fully coextensive with those he holds in his private life.

Linked to Don Surber.


Anonymous Libby said...

Good post. I didn't follow this story but I mostly agree with your take on it. Although I think we have to be very careful not to overrestrict a teacher's ability to teach critical thinking by expressing his personal ideology within a classroom. I'm especially troubled by disclipinary action taken because he was criticizing our government. One wonders if he had been making a comparison between Hitler and Saddam for instance, whether there would have been any action taken.

From what little I read about his remarks, I don't think they could reasonably be construed as either indoctrinating nor intimidating to opposite views.

I have to agree with Ron Scott's post on the subject. We want more teachers like Bennish who are willing to challenge their students to think.

5:30 PM  
Anonymous Cardinal Martini said...

It is absurd to write that Bennish's speech is protected under Pickering, and therefore he and other "Teachers Should Be Recognized as a Special Kind of Public Employee". Which one is it? Was he acting as a private citizen or a public employee?

Also, I have a hard time subscribing to the view that it is the job of high school teachers to "challenge their students to think" by comparing the president to the most notorious dictator of the 20th century. Can't this "challenge" to thinking be accomplished by -- oh, I don't know -- imparting more facts to the students than they came into the classroom with, rather than spouting gross opinions to a captive audience?

3:22 AM  

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