The Wall Street Journal reported recently that the Florida public-school teacher who had been suspended for posting on Facebook comments indicating his displeasure at New York’s decision to extend legal recognition to same-sex marriages has been re-instated. This news, though, is followed by this:
But the school district will separately investigate whether Buell may have violated the constitutional separation of church and state, according to the Sentinel.
. . . On his school webpage, Buell wrote that he tries to “teach and lead my students as if Lake Co. Schools had hired Jesus Christ himself,” the Sentinel reports.
His syllabus also said: “I teach God’s truth, I make very few compromises. If you believe you may have a problem with that, get your schedule changed, ’cause I ain’t changing!” On a separate document, he also said the classroom was his “mission field.” . . .
Now, I believe strongly that education involves (inescapably) the formation of students’ beliefs, commitments, loves, and loyalties, and I also believe that children and families have a right to select educational environments that pervasively reflect their own religious commitments. I also think that public employees, like the rest of us, have the right to participate in “the public square” as religious believers, if they are religious believers. All that said, I have to confess to being a bit put off by this teacher’s syllabus.
Even if he regards his vocation as an educator as one that should be carried out in a manner consistent with, and even infused by, his Christian commitments, it seems to me that a line is crossed when a high-school teacher frames his or her project — on the syllabus — in such a confrontational way.
Anyway, this event connects up generally with the “speech in public schools” and “speech by public employees” issues, which I always enjoy teaching: What “counts” as “school speech,” and for (what seems to be) the reduced constitutional protections that such speech enjoys? When is speech by a “public employee” the government’s, and when is it hers, for purposes of the reduced protections that public employees’ speech gets? And so on . . .
As it happens, my colleague, Randy Kozel, has an interesting paper on SSRN (and under submission to law reviews!), “Free Speech and Parity,” on public-employee speech.
This Article provides a new model for addressing the theoretical deficiency that has persisted for nearly half a century. The proposal flows naturally from the Court’s unequivocal rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a consequence of that rejection, the bare fact of government employment is no longer sufficient to impair the exercise of a citizen’s right to free speech. The baseline norm must instead be one of parity between government workers and other citizens. To justify a deviation from the default of parity, there must be a meaningful reason beyond the employment relationship itself for viewing public officials as situated differently from their peers. In reorienting the jurisprudence around the legitimate bases for differential treatment of public employees and other citizens, parity theory furnishes a mechanism for outfitting the modern doctrine with the conceptual grounding it has lacked since its inception. The theory also offers a method for repairing pervasive flaws that plague the existing law. Perhaps most importantly, parity theory highlights the need to confront a critical factor that has played an unduly limited role in the Supreme Court’s cases to date: the institutional mission of government instrumentalities.
It’s always nice when “events” make our work timely!
Posted by Rick Garnett on September 5, 2011 at 03:22 PM