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Can’t Really Teach: CRT Bans Impose Upon Teachers’ First Amendment Pedagogical Rights

Posted by on Tuesday, November 22, 2022 in Notes, Volume 75, Volume 75, Number 6.

Mary Lindsay Krebs | 75 Vand. L. Rev. 1925

The jurisprudence governing K-12 teachers’ speech protection has been a convoluted hodgepodge of caselaw since the 1960s when the Supreme Court established that teachers retain at least some First Amendment protection as public educators. Now, as new so-called Critical Race Theory bans prohibit an array of hot button topics in the classroom, K-12 teachers must either preemptively censor themselves or risk running afoul of these vague bans with indeterminate legal protection. This Note proposes an elucidation of K-12 teachers’ free speech rights via a two-part test to assess the reasonability of instructional speech. Rather than analogizing K-12 teacher speech to citizen speech, student speech, or public employee speech, as the leading Supreme Court cases direct lower courts to do, this test would account for the specific interests at play in K-12 education and consider the teacher’s pedagogical expertise.

As school board meetings host heated arguments and state legislatures ban books, the contours of K-12 public school teachers’ rights have never been more relevant. The Court continues to voice a need to maintain K-12 schools as the nurseries of democracy but does not articulate how teachers might do so in light of increasingly intrusive restrictions on speech. In higher education classrooms, professors retain academic freedom to cultivate a marketplace of ideas. In K-12 classrooms, teachers should preserve a corresponding freedom: the pedagogical freedom to teach permissible concepts in as myriad of ways. This Note argues that approaching K-12 teacher speech cases from the proposed two-step approach will clarify teachers’ First Amendment pedagogical freedom rights and thereby shield the kind of teacher instructional speech that is so crucial to U.S. democratic values.

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Mary Lindsay Krebs