The KKK example is interesting, but I think it works because
it’s so striking: Our initial reaction is that surely the KKK teacher can be
fired, but I think that reaction is partly driven by the judgment that the KKK
teacher is so sui generis. Shouldn’t we sacrifice this little bit of teacher
freedom, in order to prevent racial tension at the school?
Now perhaps the answer is yes, but that answer is especially
appealing only to the extent that this is indeed a sui generis scenario. Once
this decision becomes used as a precedent for punishing teachers for saying
that they’re disgusted by same-sex marriage, then we’re talking about a
considerably broader speech restriction. And if this extension of the KKK hypo
by analogy works, where will it stop? What if the teacher didn’t say “I almost
threw up” and “cesspool,” but simply said that same-sex marriages were sinful
(which he did say) or evil?
The danger, it seems to me, is that the emerging rule – certainly as
practically understood and internalized by speakers, but also as applied by
government employers – would end up being that all criticism of same-sex
marriage or of homosexuality could lead to government discipline. (After all,
the analogy between such criticism and the Buell statement is closer than the
analogy between the KKK organizer hypo and the Buell statement.) And that
brings up the question I asked: How should we then consider the value of the
restricted speech to speakers and to society, in applying the Pickering
balance, if indeed the speech restriction tends to deter government employee
speech on one side of such a topic?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Friday, August 19, 2011 10:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post
Mark raises valid concerns. The questions Steve asks seem to be Tinker
questions. I think the Tinker “material disruption” standard almost unavoidably
creates some risk of a heckler’s veto. It also is implicitly biased against
unpopular speech which challenges conventional orthodoxy because such speech is
far more likely to be disruptive than conventional messages expressing
generally accepted viewpoints.
It may be that these weaknesses in Tinker have to be accepted because of the
school’s legitimate need to maintain order in an institutional setting
involving hundreds of minors. But these concerns suggest that we should be wary
of extending a Tinker like standard to expression by adults expressed outside
of the school environment.
Still, that wariness may have some limits. If a teacher in a racially
integrated school with a history of racial incidents was the recruitment
officer for the local KKK chapter and used social networking as a recruitment
tool, would the school be justified in refusing to renew his contract?
Alan Brownstein
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Friday, August 19, 2011 9:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post
There is much to be said for Steve’s point of view.
On the other hand, consider the implications. What about a teacher whose blog
severely criticizes creationists (“I want to puke when I hear that Gov. Perry
wants to have schools teach creationism) or who says that religion sickens him
or who says that anyone who supports the Iraq war or that 911 was a US plot to
justify invading Afghanistan and Iraq etc.? Doesn’t this also lead to a
heckler’s veto, in which students who don’t like the teacher’s point of view
will protest and then it will be claimed that the Pickering/Connick analysis
justifies taking action against the teacher?
How would this work in the context of academic freedom in a university?
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post
Doesn't this call for a straightforward Pickering/Connick analysis? I'm
assuming Garcetti wouldn't apply, unless the teacher used Facebook to
communicate officially with students. I lean strongly in favor of protecting
the teacher's speech which, crude as it was, was clearly on a matter of public
concern. So isn't the key inquiry whether the employer can demonstrate that
this particular speech was harmful to the good order and discipline of the
school? Seems to me there would be lots of facts we'd need to know. Was the
post readable by anyone or just the teacher's Facebook friends? What's the
climate for gay students at the school? Could it be argued that this post
realistically (without the fuss caused by the suspension itself) would have
caused harm to gay students or disrupted the school generally?
Steve Sanders
University of Michigan Law School
On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene"
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
Any thoughts on this?
http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/
Lake County Schools Communications Officer Chris Patton said school officials
received a complaint Tuesday about the content on Mount Dora High School
teacher Jerry Buell's personal Facebook page .... CNN affiliate Central Florida
News 13 reported that a status post on it said, "I'm watching the news, eating
dinner, when the story about the New York okaying same sex unions came on and I
almost threw up."
Patton would not confirm the content of the post, but he said Lake County
officials are taking the matter very seriously.
"We began to review the code of ethics violations immediately and yesterday
afternoon temporarily reassigned the teacher pending the outcome of the
investigation," Patton told CNN Thursday....
The newspaper said that in the same July 25 post, Buell said same-sex marriages
were part of a "cesspool" and were a "sin." ...
Buell, a teacher for more than 26 years [and a former “teacher of the year”],
served as the Social Studies Department chair at Mount Dora and taught American
history and government, according to the high school's website....
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