Civility and Free Speech in Education

Charlie Hebdo could be published in the United States. But what if it were distributed in schools or assigned for students to read?

Is uncivil speech protected by the First Amendment? This is a question not so easily answered. The short answer is this: In general, yes; but in education, no.

In U.S. public education the issue of civility has received much attention since Professor Steven Salaita was unhired by the University of Illinois in August 2014 for uncivil tweets. University administrators across the nation have been defending civility ever since.

As a general matter of First Amendment law, you needn't be civil to be protected by the First Amendment. Government censorship or punishment of speech on the basis of what is deemed a lack of civility generally violates the First Amendment.

But what about in education? What about the speech of teachers and researchers operating within their academic responsibilities? What about the speech of students in academic contexts? Professor Salaita's tweets were likely protected by the First Amendment because he was speaking in the public domain, but what if these were comments made in class?

The Supreme Court addressed the question of civility in education in Bethel v. Fraser (1986). The case began with a one-minute speech at a high school assembly in which a student described a candidate he supported for student government office as "a man who is firm ... a man who takes his point and pounds it in ... a man who will go to the very end -- even the climax, for each and every one of you."

The audience was amused and the candidate was elected. School officials were not amused; they penalized the speaker, whose subsequent lawsuit eventually reached the Supreme Court. Ruling for the school, the Court concluded that public schools are legitimately concerned with "the habits and manners of civility." Regardless of the First Amendment, they have the authority to set standards of civility and to punish speech that violates those standards.

Bethel v. Fraser involved high school students. But that was just the start.

In Hazelwood v. Kuhlmeier (1988) the Court extended the rationale of Bethel v. Fraser to conclude that when the government functions as an educator it is largely free of First Amendment constraints. In Garcetti v. Ceballos (2006) it ruled that when the government functions as an employer it is free to regulate the speech of its employees, as is any other employer.

When public employees are doing their jobs, in other words, they are not protected by the First Amendment. The First Amendment only applies to public speech on one's own time. Many courts have applied Hazelwood and Garcetti to higher education, though some have balked at doing so.

Outside of educational contexts, in contrast, the Supreme Court has strongly supported the First Amendment rights of minors. Most recently, in Brown v. Entertainment Merchants Association (2011), it struck down, on First Amendment grounds, a law limiting the access of minors to violent video games, which were more than just "uncivil."

The important distinction in applying the First Amendment in education, then, is not between high school and college or between students and faculty. The major distinction is between curricular and personal speech. Students of all ages, and faculty in their free time, are strongly protected by the First Amendment in their public comments and media participation. Within classrooms and curricula, however, no one at any level of education should count on the First Amendment.

Fraser, Hazelwood, and Garcetti were all wrongly decided, in my judgment. But these cases are established law, and it would be foolish to pretend otherwise.

What to do? Nothing in any Supreme Court decision requires censorship. Far from promoting civility, censorship is itself uncivil. Teachers can and should promote civil discussion without censoring or punishing uncivil speech. They can be models of civility, can urge and remind students to respect each other, can engage students in serious argumentation, and can evaluate the quality of their arguments. None of this requires censorship.

Sometimes there will be controversy about what gets said and sometimes there will be efforts to prevent or punish uncivil ideas or modes of expression. We should not assume that if academic freedom is threatened the First Amendment will come to its rescue. Rather than rely on wishful thinking about constitutional law, educators at all levels must clarify and explain the academic basis for academic freedom and promote policies that protect that freedom for all.