Teaching for America: Unions and Academic Freedom

Much of the current controversy regarding the rights and responsibilities of public-sector employees and their unions has focused on elementary and secondary school teachers. On one side of that controversy, critics of teachers and teachers' unions argue that teachers are overpaid civil servants and that unions’ focus on wages and working conditions comes at the expense of students’ learning. On the other side, teachers’ unions and their supporters focus on the unique role educators play in forming the next generation of citizens and the need to adequately support teachers in fulfilling that role. Implicit in this discourse are two distinct characterizations of teachers: as governmental employees following directives laid down by school boards and principals; and as semi-free agents charged with expertly carrying out a democratic mission. While these characterizations are not mutually exclusive, they implicate different values that can stand in tension with one another. For example, if teachers are characterized primarily as governmental employees, employers’ directives will be paramount in determining how teachers should perform their jobs, even when they are ill-advised; on the other hand, if teachers are characterized primarily as agents of democracy, students’ interests, together with those of society writ-large, should be the focus. These discursive strands are also present in courts’ treatment of teachers’ First Amendment rights. Some decisions focus on teachers as employees whose work performance is subject to employer control. Others find significance in teachers’ democratic role and focus on the fact that teachers are charged with implementing the vision and values of their communities as articulated by elected school board members. Many courts combine these two strands to articulate a particularly narrow scope of teachers’ First Amendment rights, disregarding tensions between the strands. These decisions are of great relevance to the present debate regarding the proper role of teachers. First, the decisions themselves reflect the competing values implicated in that debate. Second, the limits that courts impose on teachers’ speech rights in and out of the classroom affect the educational goals that teachers may choose to pursue and the means they use to achieve them. Teachers’ classroom performances can alter public (and judicial) expectations regarding the role of teachers more generally, leading to a self-reinforcing cycle. Third, if teachers can no longer unionize and bargain with their employers to protect their speech in the classroom, the First Amendment’s floor of protection will become increasingly important. I begin this article by describing the existing First Amendment protection for teachers’ curricular speech by exploring three cases upholding school districts’ decisions to punish teachers for teaching controversial material. I then suggest that because existing precedent does not offer meaningful protections for teachers’ speech, collectively bargained protections for academic freedom may be the best available method for shielding teachers who make reasonable pedagogical decisions delegated to them by school administrators. Finally, I conclude the article by proposing that collectively bargained academic freedom provisions can serve the best interests of not just teachers, but also students, parents, and school boards.