When School Content Decisions Become Unconstitutional

BY STEVE NUZUM

Schools and districts in which they work, have a long-standing and necessary role in deciding which content to provide for students, while also respecting the rights of students and employees. 

It’s a tricky balancing act that arguably can’t be perfectly executed even in the best of circumstances. The particular requirements of the United States Constitution, which offer far broader protections from government censorship of speech, mixed with a somewhat ambiguous history of decisions by US Courts, make it challenging to know which decisions to make.

And we certainly aren’t living in the best of circumstances when it comes to intellectual freedom. Federal and state attacks on the speech and access to information of professors, K-12 teachers, librarians, students, and government employees are at perhaps an all-time high.

South Carolina’s anti-book ban lawsuit 

Perhaps nothing in South Carolina has highlighted the uneasy balance schools must (or at least should) seek more starkly than the recent lawsuit filed by the South Carolina Association of School Librarians (SCASL), along with several public school students and their families, against Superintendent of Education Ellen Weaver.

The complaint, filed by attorneys from the South Carolina ACLU on behalf of SCASL and the students, alleges that that Regulation 43-170, which grants the South Carolina Board of Education broad powers to ban books in South Carolina schools-- and which has resulted in the highest number of statewide book bans in the country-- violates both the First and Fourteenth Amendments of the Constitution. 

While the First Amendment claims are significant, the Fourteenth Amendment claims may be of even more interest to librarians and teachers. 

The Fourteenth Amendment includes the language, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 

According to the complaint, “The Regulation is also unconstitutionally vague under the Fourteenth Amendment because its text (and Defendants’ even more confusing instructions for enforcement) fail to provide librarians and other educators with sufficient certainty about what materials do and do not amount to a ‘description or depiction’ of ‘sexual conduct.’”

Because of this vagueness, librarians and teachers are essentially unable to follow the regulation, even if they don’t already believe that doing so is unconstitutional. 

Indeed, vagueness seems like it must be the intended objective of the regulation. When its author, attorney Miles Coleman, was hired by the Department, his explanations of the regulation during public meetings of the Board seemed geared more towards creating PR cover than explaining the legal foundation of the regulation. 

During those remarks, in response to many concerns raised by the public, Coleman claimed that although many works like the Bible, Shakespearean plays, and other texts which frequently appear in school classrooms and libraries, do contain sexual content, they do not contain sexual content which is explicit enough. Specifically, Coleman cherry-picked one of the less racy examples of sexual conduct from the Bible, which occurs in the “Song of Solomon,” arguing that while it was a depiction of sex, it was somehow not the kind of “depiction of sex” forbidden by the regulation.  Other examples throughout the text arguably do violate the very broad language of the regulation. 

Similarly, as the SCASL v Weaver complaint points out, “The State Board’s explanation for retaining 1984, that it lacked enough ‘explanatory detail’ to ‘form a mental image of the conduct occurring,’ caused more confusion. This standard is highly subjective, and librarians do not know how to apply it. Different people require different amounts of detail to form a mental image, and librarians do not know whose perspective matters.”

Long story short, the Constitution requires that decisions about content by publicly-funded schools and the agencies that oversee them be made using a fair process that is driven by legitimate concerns, not by political ideology or even personal preference, if it means that some groups of people are afforded more intellectual freedom than others. 

The law is on educators’ side (to an extent).

In 2023, State Superintendent of Education Ellen Weaver, responding to widespread complaints about book bans, told the state's school librarians, “... there is no such thing as academic freedom in K12 education”. 

Based on Supreme Court precedent, Weaver’s statement is not accurate for either teachers or students.  In Pico v Island Trees (1982), for example, Justice Joseph Brennan (appointed by Republican president Dwight Eisenhower) wrote, “Students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’... and such rights may be directly and sharply implicated by the removal of books from the shelves of a school library.”  

South Carolina law provides additional specific protections for all employees from being fired for “political speech”: “It is unlawful for a person to assault or intimidate a citizen, discharge a citizen from employment or occupation, or eject a citizen from a rented house, land, or other property because of political opinions…”  

Of course, for teachers fired or disciplined for engaging in speech which may be protected, proving their case may involve the cost, time, and energy of hiring an attorney and challenging the actions of employers in court. 

Still, in some ways, teachers and other public employees have more free speech protections than many other workers, particularly in an “at will” employment state like South Carolina.

This is because of a series of US Supreme Court decisions that have helped to partly clarify when a government entity is violating First Amendment protections by firing or disciplining a public employee. 

In Pickering v Board of Education (1983), the Supreme Court found that a teacher who had written an editorial critical of the school board had not given up his First and Fourteenth Amendment protections. The Court wrote, “In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”

As Justice Thurgood Marshall wrote in the Court’s majority opinion, “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employers.”

And as education expert and Constitutional scholar Derek W. Black told me, teachers clearly have a right to speak on “issues of public importance,” but he did emphasize, as the Court did in Pickering, that there are kinds of public speech that might still give school districts cause to legally discipline or fire an employee. 

So although teachers have the right, and arguably a special responsibility, to be publicly engaged on issues of policy, the Courts have generally found that this right has to be balanced with their ability to do their jobs in order to provide them with protection from being fired or disciplined.

General tips

Professor Black told me that, when considering whether their speech is protected, it might be important for educators to ask themselves the question, “How does this, if at all, impact my ability to discharge my job, or how does it impact my students?” For example, speaking publicly about an issue in a way that would seem to demean students or their families for their political views might make it harder to equitably serve all students. (This is often the argument rightly used by educators rejecting racist or anti-LGBTQ+ rhetoric in schools, and one way to test whether concerns about educator speech are sincere might be whether critics are concerned that all students are being given access to an accepting school environment, regardless of their beliefs and identities.)

While the democratic process only works correctly when citizens are willing to have conversations and debates on public policy, the Courts have also generally assumed that teachers, as a part of their job function, do have a special responsibility to serve all students. This doesn’t negate their right to speak without government censorship-- and, again, as government employees, teachers arguably have more protections than many other employees-- but it does require a delicate balance. 

More practically, it may be easier to argue that you are speaking as a private citizen, and not as a school employee, if you do the following:

• Avoid identifying yourself on social media, or in the context of policy statements, as an employee of a school or district. This will help the public and your employer understand you are not speaking as a representative of your school or district, but as an individual with a valid interest in public issues. If testifying or commenting publicly, it might even help to explicitly say, “I am not speaking on behalf of my employer, but as a private citizen.”

• Be thoughtful about the size of your audience, and consider evaluating who is able to see your posts or read your comments. Consider asking yourself if it benefits the public for you to widely share a personally-held opinion or belief, or if it is worth the potential headaches to share that thought. 

• If possible, avoid making comments about individual people, especially if they are not public figures. Try to focus on issues and policies that are important to the public. (This might make your argument stronger rhetorically, as well, by avoiding ad hominem and focusing on the facts and logic of your position.) 

• Be aware that some people-- including parents and students-- may intentionally “bait” educators into saying something publicly that leaves them vulnerable to discipline, doxing, or other kinds of attacks. 

• Assume that people who have a vested interest in harming schools or school districts may see your post, even if it is not made public, and that organized anti-educator groups with large reaches are actively soliciting material to help them dox and vilify teachers. 

“Judicious, but not fearful.”

While Black and other attorneys with whom I spoke acknowledge that teacher free speech protections are generally balanced with their important job duties, Black also did say he hoped educators would continue to have the important conversations with students that expose them to real issues and ideas in a school-appropriate way.  He said he hoped teachers would be “judicious” in making decisions about what to say publicly, without being overly “fearful” in a way that chills productive speech on issues of public importance.

The SC ACLU has invited educators to share any incidents in which they feel their right to speak has been violated using this form. (It would be best practice to provide your personal contact information, including email addresses, rather than any employer-provided contact information.)