A Teacher's Right to Remain Silent: Reasonable Accommodation of Negative Speech Rights in the Classroom

I. INTRODUCTION Nearly every significant case analyzing public school teacher speech rights in the classroom involves affirmative expression.1 This should come as no surprise, given that the learning process in the classroom is built on active speech, mostiy by the teacher.2 But what happens when the school district's approved curriculum compels a teacher to express views that contradict the teacher's own deeply held personal or religious beliefs? Given that the First Amendment protects "both the right to speak freely and the right to refrain from speaking at all,"3 may the teacher refuse? In Palmer v. Board of Education? one of the few cases to squarely address the issue of a teacher's negative speech rights in the classroom,5 the Seventh Circuit answered with a conclusory "No."6 But the Palmer court largely ignored die issue of negative speech rights and based its holding instead on cases that involved affirmative speech rights in conflict with the prescribed curriculum.7 According to the Palmer analysis, it is irrelevant whether teachers are actively disregarding the curriculum in favor of their own content,8 or merely refusing to teach material that contradicts their deeply held beliefs.9 The First Amendment provides no protection in either case because teachers do not have such authority over the curriculum.10 Simply put, if die end result is frustration of the prescribed curriculum, it makes no constitutional difference to the analysis what reasons teachers give to justify or explain their behavior. But it should make a difference. If we accept as true that "teachers [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,"11 then efforts must be made to preserve these rights so long as the efficient operation of public schools is not unduly compromised.12 As such, school districts and school boards should be required to make reasonable accommodations, such as an opt out provision, for teachers who refuse to teach material that directiy violates their deeply held and preexisting personal or religious beliefs.13 The outline of such an approach can be drawn from values already present in school speech rights precedent, including Palmer. Reasonable accommodation of negative speech rights effectively balances the various interests and policy considerations implicated by speech rights in the schools, thus disarming the "troubling paradox" of democratic education while advancing some important educational values.14 It also displaces die government-as-employer from die awkward position of requiring speech that is fundamentally inconsistent with the teacher's conscience, which is a potentially unconstitutional condition. Establishing a more appropriate standard is important because while cases involving the negative speech rights of teachers are rare, they may arise more frequently as contentious political and religious issues make their way into primary and secondary school curriculum.15 Part II of this Comment reviews precedent in the area of negative speech rights for students and teachers to show that this is not an altogetiier foreign concept. Part III discusses the Palmer decision in more detail, focusing on the court's failure to adequately account for the negative speech rights of teachers in the classroom, while also recognizing the value placed by the court on die rights of students to learn. Part IV then reviews the most popular analytical approaches courts use to determine the extent of free speech rights in die public school context, none of which is directly analogous to a case involving teacher negative speech rights. Yet at the same time, die policies and values reflected in these approaches provide guidance in framing a new approach for negative speech rights. Finally, Part V advances a reasonable accommodation approach to negative speech rights, including threshold limitations to avoid widespread litigation. II. THE PRECEDENT FOR RECOGNITION OF NEGATIVE SPEECH RIGHTS IN SCHOOLS Protection for negative speech rights in schools is not a new concept. …