Some years ago,the second circuit decided a case involving a teacher at an elite nyc public school who was a member in the North American Man Boy Love Society. The teacher said nothing about his membership in school;naturally the students found out. The second circuit affirmed his dismissal. I don't have access to the cite. Marc Marc
From: Brownstein, Alan [mailto:aebrownst...@ucdavis.edu] Sent: Friday, August 19, 2011 05:24 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post I agree that the substance of what the KKK says and stands for makes my example striking and sui generis. But my hypothetical had two elements. The second part is that the teacher was the recruitment officer of the local chapter. How would you evaluate this situation, Eugene. The teacher is the recruitment officer of the “Gays are Abominations Society” which expresses horribly negative views about gays and lesbians. He teaches Seventh graders, 12 years olds. He uses his social networking pages as a recruitment tool and accepts past and present students as “friends.” (But he doesn’t recruit on school grounds or invite his students to be his “friends” while on school grounds.) Are there we lines we can draw that allow restrictions on this kind of expressive conduct without creating a foundation for punishing anything a teacher says on his face book page that the principal, school board or local community does not like? Just as all speech expressed with passion incites (Brandeis and Holmes), all speech expressed with passion invites and recruits in some sense. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 19, 2011 1:33 PM To: Law & Religion issues for Law Academics Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post 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
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