A Free AND Ordered Space: The Tension Between What You Can Do and What You Should Do

Part 5 of the series

By John Sedor of Sedor, Wendlandt, Evans & Filippi, LLC

On December 10, AASB hosted the latest edition of Law & Policy Day which was an in-person in depth focus on “A Free and Ordered Space.” What was interesting and enlightening to me was to listen to the speakers provide their unique perspectives on not only what A Free and Ordered Space means to them, but how it actually impacts their view of and work in public education. Two presenters are mentioned below.

Commissioner Michael Johnson described the tension that exists between freedom and order is not static. In other words, the search for a free and ordered space is not finding a balance. This is because the concepts are not static; it is not something that you figure out for a particular situation and then rest knowing the balance will continue to exist as time goes on. Instead, the concepts of freedom and order are fluid. This means that the solution for today may not be the solution for tomorrow. The Commissioner likened it to the “tension” necessary for setting up a camping tarp on an Alaskan outing. The tension necessary to keep the tarp up takes constant adjustment as a result of use, weather, wind, etc. The need for constant attention and adjustment is similar to many of the challenges that we face in public education today.

NEA-Alaska, through Monica Southworth, also presented. [A side note: NEA-Alaska’s participation in Law & Policy Days is itself a nod toward the beneficial “tension” of hearing not only from a school board’s perspective, but also to hear other voices and other perspectives in a respectful environment.] Ms. Southworth’s presentation examined the tension between what a teacher may do on her own time versus what a teacher ought to do – especially regarding speech.

She discussed the famous U. S. Supreme Court case Pickering v. Board of Education (1968) [Fun fact: When the Supreme Court heard the Pickering case, there was a companion case … from Alaska! It is called Watts and Blue vs. Seward School Board. So, the “Pickering Test” has an Alaskan side to it and could very well have been referred to as the “Seward” test.]

The Pickering Test is a great example of the tensions involved in considering whether a District can or should take action in response to employee speech and tensions that are created regardless of action (also known as “consequences”). Under Pickering, public employees do not surrender all of their First Amendment rights merely because of their employment status, but those free speech rights are tempered in certain circumstances. This is because the government as an employer has interests in regulating the speech of its employees differently from regulation of the speech of citizens in general. A critical issue under the Pickering Test is whether the speech is on a matter of “public concern.”

In discussing this, Ms. Southworth reviewed the 2015 decision of the Third Circuit in Munroe. In Munroe, a teacher in Pennsylvania had a blog that was intended for her friends and family. The blog began innocently enough and had a whopping 9 subscribers for the first year. (So often the story begins with an innocent intent.) In the second year, she began to blog about her work experiences and made extremely derogatory remarks about her students (without naming them or even which school she worked at). As so often happens, especially on social media, the blog – with its controversial content – was discovered and widely distributed. This all created “a ticking time bomb” for the school which included over 200 opt-out requests from parents to remove students from her classroom.  Her employing district struggled for over a year as to whether the blog – the speech – was protected by the First Amendment. For purposes of a Free and Ordered Space, the district’s final decision is not as interesting as what the district said at the time in a public statement:

“The real issue is that while something may be legally right, it may not be ethically or morally right. There are consequences that occur when a person chooses to exercise her rights and say outrageous, disrespectful, vulgar and cruel things about other people … especially when it’s a teacher saying terrible things about the young men and women who are in her classroom.”

This quote is one example of the tensions that come into play as we seek a Free and Ordered Space. While this case is about a teacher, the lesson – as contained in the above quote – could be applied to anyone: a superintendent, a board member, a school attorney. The application though is never a one-size-fits-all or a static balance. As we head toward a new year, let’s remember that we need to find and then care for and adjust the “tension” to reach the right (not just legal) decision.

[For the curious, in the end, the teacher lost her job.]

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