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On occasion, I find myself itching to compose a post for this blog relating to some aspect of my work. Often, I end up stopping myself because…well…umm…because I’m scared. You see, I’m an untenured professor in a world (academia) that largely doesn’t get this whole blogging thing. It is (I’m afraid to say) still a fairly traditional space where hierarchies and bureaucracies abound. The politics of higher education are not a whole lot different than the politics of P-12 education. So, I’m extremely cautious so as to not speak badly of anyone or to write anything that might get back to anyone important.
So, I was particularly interested in Vicki “CoolCatTeacher” Davis‘ comment on Gary Stager’s blog. She wrote, “Classroom teachers in the public school system who blog are on a ’short leash’ if any and do not truly experience freedom of speech, as you could well imagine.”
Then, Will Richardson posted today about a similar topic. According to Will, “…the New York City Department of Education has laid down the law about employees referencing their blogs in their e-mail signatures…the city is providing disclaimer language for anyone in the department who blogs and who comments on other’s blog.”
As you might imagine, this is all very troubling to me. I have academic freedom and so do K-12 educators. There are laws about that. I even JUST presented a paper about free speech rights of K-12 educators. Here’s the legal standard in a nutshell: First, is our expression (blogging is certainly a form of expression) a matter of public concern? In almost all cases, the answer to this is yes (if not, there are no First Amendment protections for purely private speech). In the Gary Stager case, writing about Reading First would be a matter of public concern. The second step in the analysis is the “disruption” test. Does the individual’s interest in expressing him/herself outweigh the disruption caused to the school environment? In other words, did the expression interfere with teaching, destroy morale, create lots of negative chatter, etc? Negative publicity has been deemed to be NOT disruption in at least one instance.
So, I think I need to reflect a bit and find my voice again. And, I hope the teachers Vicki commented about can find theirs as well. They and I have rights.
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Dr. Becker: Ahh–this conversation sounds familiar! Did you recently have this discussion in a local middle school? I have been reflecting on your assertion that educational leaders should be “having the conversation” in the blogoshere, and I came to the conclusion that I think you are naive to be “troubled” by the reports outlined in your post about teachers’ blogs being reigned in by administrators. Do you accept that:
–School leaders are politicians who serve at the pleasure of the school board, which is (most of the time) elected by the people
–It is expected that school leaders’ public views must be kept in line with community expectations
–Many small communities don’t accept or want change, especially when things are running seemingly pretty smoothly (have you visited Richmond, virginia lately?)
–If a school leader made public comments that were at odds with community views and expectations, he/she would be in danger of losing his/her job
?
According to my county’s official policy, teachers are not allowed to solicit the media for any reason without approval, much less make a comment to the media. Doing so in my school would be quite a slap in the face to the administration, who has made such expectations very clear. Can you imagine what would happen if teachers put their controversial views out there on a blog to be viewed, commented upon, and used as a source in a newspaper article?
It is certainly right for you to question and defend the rights of people and educators to say their piece. But what about people who just want to have a stable job as a school administrator? Can you imagine what will happen when I interview with the panel hiring principals and the head guy asks me: “How would you be able to work with parents when you said on your blog–and I quote–PARENTS CAN BE AWFULLY DIFFICULT TO WORK WITH”?
Dr. JB, you are right, in your tower, to ask these questions and advance the idea of technological freedom for school leaders. But some of us want to just get a job and keep it! Please let me know when it will be okay for me to say whatever I want and then tell the school board in a small, southern community to take me or leave me. I think I know what the answer would be.
This is why I start blogs and then seldom write in them…”what if ‘they’ find out?”.
In spite of that, I linked to your post in my blog; hope you don’t mind.
Hope all is well, Dr. Becker!
–Laura R (formerly of Hofstra U)
I appreciate your bringing attention to this issue. It is exactly the reason I have an issue with this policy. It is utterly important that educators have a voice that is celebrated, not silenced. If we had more of a voice, and if our voices were celebrated, perhaps education would receive more attention in important areas such as the presidential race. Equally important is that we should be serving as role models for our digital native students who are entering these waters without our modeling or guidance.
I began this blog after the prodding of people like Will Richardson who rightly asks people in positions like mine, “Where is your digital footprint?” and like Lucy Calkins (Teachers College Reading and Writing Project) who taught me how important it is to serve as a model for authentic publishing.
I think of my blog as a professional and public digital writer’s notebook which has served me well as a vehicle to share best practices, ideas, and advice, as well as model professional and appropriate use of the digital media. I hope you and others will have an opportunity to read my blog and that I will be able to continue to tie it to my professional self through my email signature.
Lisa Nielsen
The Innovative Educator
http://TheInnovativeEducator.blogspot.com
Jon, any reason you did not include Garcetti into your legal analysis? I think Garcetti wouldn’t even let you get to your public concern and disruption analysis. Garcetti would end it right away:
Q: Is the blog (or content) related to your official job duties?
Yes = End of story … not protected, employers can take adverse actions.
No = Go to your Public Concern/Disruption Analysis
The problem is a lot of what we blog about (especially as professors) could be reasonable related to our job duties (if we are going to call this service on our vita, then it is probably job related). So, I actually think you overstate the protection afforded to K-12 educators and likely professors as well since we are all public employees.
I am not sure, it is certainly an interesting question. I just think if it came down to it, our speech would not be protected on the blogs and much of it would related to our jobs thus opening us up to the will of the employer under Garcetti.
But, of course, this all assumes tenure committee members actually read the blogs. I blog on legal issues and work with 4-5 other educational law scholars … none of which read my blog. I don’t worry a whole lot about what I say on the blog getting in the way of my tenure (or getting a job). I would never openly attack anyone on the blog, but I have no problem putting in a little personal commentary from time to time even if it is opening me up legally. I figure if I am comfortable enough to say it in the classroom then I should be comfortable enough to say it on the blog.
Justin, what about this part of Justice Kennedy’s opinion in Garcetti:
“There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
Well, what do you know? One former doc. student and one current student. How cool and hello Laura and Betsy…
@Betsy – I have great respect for the politics of education. And, I don’t know that I think you should be able to “say whatever you want.” But, two things. First, soliciting the media is different from blogging. Second, my post was largely motivated by Gary Stager calling out bloggers for not writing about the Reading First report and Vicki Davis commenting that sitting educators are constrained from blogging about that by, presumably, retaliatory concerns. I think it’s against everything I believe in about academic freedom to think that an educator couldn’t publicly critique federal education policy. If you wrote a blog post critical of your principal’s decision to appropriate funds in a certain way, that’s a little different. But, writing about larger educational policy issues is OK and quite worthy.
@Laura – what’s up?!?!? Yours is a voice that needs to be heard. I hope you can find yours as I find mine.
Lisa, you’ve been added to my RSS reader and my list of Twitter followees. Your post got Will R. writing today which got me writing today. So, thank you for the spark!
@Jon#5 – It is a fair point and I am not 100% sure, but I have not seen the academic freedom argument carrying the day much yet. Perhaps you have and perhaps it will eventually, but I don’t have enough evidence of that at the moment to say it provides any real protection.
This just reminds me of the Mayer case out of the 7th Circuit where the teacher commented on the Iraq War and was fired under the Garcetti ruling. Seems like a comment on a blog would be a lot like that case. I know at AERA we were discussing this very academic freedom issue and at least some scholars think that academic freedom may be out of the window with Garcetti (the most prominent person advocating this position was Jeffrey Sun (UND) who specializes in higher ed law issues).
You may well be right, but just because Justice Kennedy did not want the case to apply to scholarship and teaching doesn’t mean the lower courts won’t use it in those situations. Clearly the lower courts are applying Garcetti to educational situations, including some teaching situations. I have not seen it applied to higher ed. scholarship issues yet and my feeling is that it will not be extended that far, but I don’t think we know that for sure yet. But, I have not read all the cases either, so maybe there are cases I don’t know about.
Anyway, this is a good law journal article. If I were not so busy I would offer to write it with you but it will be at least the fall before things settle down for me.
Justin, I have not been following the lower courts in the wake of Garcetti, so I’m dismayed to read about cases like Mayer. If educators can’t speak publicly on matters of public concern without fear of consequences, I fear the chilling effect on future educators (or any public employment). Why would anyone choose to become a public servant if they can’t converse publicly about their profession? Education, in particular, is a space that needs critical public conversations between those who do the work. But, I suspect I’m preaching to the choir here…
Preach it Brother Jon. I could listen to it all day and twice on Sunday.
But, that’s what appears to be happening. When I tell my students they just sort of sit and stare at me, like …. “what?”
Jon and Justin, it’s important to make a distinction between ACADEMIC FREEDOM (what gets said in the classroom) and PUBLIC SPEECH (what gets said outside the classroom). You’re calling the latter the former. Different legal analyses!
Yes, Scott, that’s a good point. The Connick-Pickering (and maybe Garcetti) standard is for free speech cases. I would add, though, that this gets muddled where a teacher blog is part classroom space, part personal space.
Is not the reason for a limitation on teachers the fact that they have an overwhelming influence on those in the classroom or under their tutelage? Is not the fear that personal preferences and opinion become the curriculum? If so, there is legitimate concern for keeping that out of the classroom. I believe that Scott clears up the when and where this influence can be appropriate. He as my “teacher” has a level of control that he does not as a “collegial blogger” or member of the community, correct?
Scott, I agree with Jon that the line is NOT that clear here. What you are doing on Dangerously Irrelevant, Scott, is part of your teaching, is it not? You consider it part of your job, right? I certainly do because I use my blog as part of my classroom instruction and encourage my students to use it to find current events and links to other legal sources. My blog is part of my teaching, my service, and my research (which speaks to a different post by Jon).
I don’t see this any differently than any other off-campus speech case, and I don’t think the courts do either. If there is a nexus to the school and to instruction, then the school has the ability to regulate. Since most of what our edubloggers say online does relate to the school, then it is fair game. If it is truly off campus then sure the school has no place regulating, but I would venture to guess that at least 1/2 of what edubloggers do meets the nexus.
So, in those situations where there is a nexus, the school can regulate unless there is a reason it can’t, such as the First Amendment. But, the default position is regulate so we have to do the First Amendment analysis which I think pretty much starts and ends with Garcetti these days, online or offline.
Now, there are lots of questions that we don’t know answers to here and why I think this would make a nice law journal or ed. journal article. First, what part of the blog counts in creating the nexus? If you have 300 posts and 8 directly relate to the school, are all the posts deemed to have a nexus? So, do we consider the blog as a whole or individual posts? Second, should different types of blogs be treated differently? Blogs are sort of a catch all medium and just as we would treat a newspaper editorial differently than a diary entry and differently than a professional journal article, perhaps we should be treating blogs differently since the medium can accommodate all those different types of expression. Third, is a blog part of your instruction? If you look at Mr. Williams 6th Grade Math (http://mrwilliams.edublogs.org/) that is clearly a teaching blog and should probably be considered part of his job since parents and students are his chief readers. But, compare that to The Daily Grind (http://ahighcall.blogspot.com/) in which the author even says at the top of the page, “The thoughts expressed here are my own and not intended to represent the school or district I work for” and that might be a different picture. Plus, does that disclaimer even mean anything? Should we all be running disclaimers?
Anyway, there are lots of questions here, but the question of whether or not blogging can fall under the regulatory arm of the school is pretty much answered in my mind in the affirmative.
Justin
If you have a conversation at the local convenience store about your school or district, does that met the criteria? Is there a nexus based on that medium? I’m still stuck on using that as a comparison to expressing opinions, asking questions, and clarifying through edublogging as well. I don’t really see that there is a lot of difference between my opinion orally or in black and white (or digital images). Other than proof/evidence in a litigious situation, why would it matter?
Putting the Garcetti case aside for now (b/c it bugs me and b/c if it’s being interpreted as broadly as Justin suggests, I think it’s hugely problematic)…If we’re analyzing this as a free speech issue, the legal standard is not simply a nexus. The “expression” must be disruptive to the school environment for the employee to be “punished.” So, Marshall, you can have all the conversations about school at the convenience store you want. But, if you speak on “a matter of public concern” and that expressive activity ultimately results in disruption to the school setting, you could be in trouble.
Right, we can leave Garcetti. It is a problematic case to be sure and I don’t think we know its full implications yet. But, I will say Marshall, under my interpretation of Garcetti, it is quite possible you could be fired for a conversation in the convenience store depending on the circumstances (I think that is especially true if you are a principal). We don’t know for sure yet but in just writing a new edition of Martha McCarthy’s textbook, that is sort of the interpretation of Garcetti we put in there.
But, I think this speaks to the confusion that exists right now regarding teacher speech. I don’t think anyone REALLY knows what is going on. Each time a court looks at this issue right now, they have to figure out just how far to extend Garcetti so it is sort of a guessing game except in a few Circuits that have already decided the issue.
Enjoyed the conversation though.
Thanks to both Jon and Justin for clarifying for me. I agree that the confusion is the issue and that (especially as a principal) undermining the school in any setting would be cause for termination if it is substantially disruptive. This only makes sense. I too enjoyed the conversation, and I’m glad law is not my forte or livlihood. You guys are just way too smart for me.
Has there been a classroom speech case since Hazelwood that’s gone in favor of a K-12 teacher? My oft-hazy memory is that pretty much every case since then has extended Hazelwood’s ‘curricular speech’ reasoning to teacher speech as well as that of students. In other words, whatever academic freedom rights K-12 teachers had before 1988 are now gone unless specifically explicated in a collective bargaining agreement, district policy, or state statute. Am I incorrect on this?
As a postsecondary instructor, my academic freedom rights are strong. But if I returned to K-12, I shouldn’t expect to have any, I believe. Justin, I’m in for an article (starting in the fall) if you are!