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Before we get to the pronouns segment of this newsletter, I want to introduce you to what might be the most important Supreme Court case you’ve never heard about. It’s a 2006 case called Garcetti v. Ceballos, and it’s central to America’s educational culture wars.
The question in the case was relatively simple—do public employees enjoy First Amendment protections when they’re engaged in job-related speech? Previous cases had determined that public employees enjoyed substantial free speech protections for speech “off the clock” when they spoke about “matters of public concern.” But what if the speech at issues was made “pursuant to the employee’s official duties”?
At issue were statements made by a Los Angeles County deputy district attorney named Richard Ceballos. He claimed that he suffered acts of official retaliation after raising internal objections to the contents of an affidavit used in a criminal prosecution. He claimed that since his internal communications involved a matter of public concern, they enjoyed First Amendment protection.
The Supreme Court, in a 5-4 opinion disagreed. Justice Kennedy, writing for the majority, explained the ruling simply enough: “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
This ruling, taken at face value, would seem to indicate that public school teachers and public university professors enjoy no First Amendment rights in the classroom. After all, when they’re teaching, they’re fulfilling their official duties. Indeed, Justice Souter raised this objection in his dissent. Justice Kennedy responded with this cryptic comment:
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.
In plain English, the court punted. It didn’t explicitly apply Garcetti to teachers, but it didn’t carve out an exception either. It left the matter for lower courts to figure out.
Why would the court reserve any ruling on scholarship or teaching? Perhaps because it has long held that education plays a vital role in free inquiry. In the 1957 case of Sweezy v. New Hampshire, the court issued a clarion call for free expression in higher education:
Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.
A quarter-century later, in Board of Education v. Pico a case that limited the ability of school boards to remove books from school libraries, the Supreme Court articulated how schools should prepare students to be citizens of a pluralistic republic:
Just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.
In the 16 years of litigation since Garcetti, a rough judicial consensus has emerged. Courts will protect the free speech rights of public college and university professors. Secondary school teachers, by contrast, face much stricter controls. While they enjoy broad rights to speak on matters of public concern outside of school hours, when they’re teaching, they can face tight controls, including prohibitions against injecting their personal opinions into classroom discussion.
This near-total state capture of teachers’ speech is a legal mistake, one that is inconsistent with an education aimed at training students to participate in American democracy. And I’m going to use a case involving pronouns to illustrate why. The case is called Ricard v. Geary County Schools, and it flips the script on recent fights over school curriculum.
For the last several months, “anti-woke” activists and legislators have been pushing bills through red state legislatures that attempt to limit classroom instruction (and sometimes even discussion) of so-called “divisive concepts.” Advocates often refer to the bills as “anti-CRT” legislation, while critics call them “gag orders.”
As I’ve written at length, the bills (with precious few exceptions) are incredibly broad, prohibiting speech the First Amendment plainly protects. As applied to public colleges and universities, they’re blatantly unconstitutional. They’re likely legal in public schools only because of the draconian limits courts have placed on teachers’ in-class constitutional rights.
The Ricard case is different. Here the “anti-woke” seek judicial relief from the “woke.” The plaintiff, Pamela Ricard, is a middle school teacher who refuses to use preferred pronouns or to use names that indicate a child has adopted a new gender identity. According to her complaint, the school suspended her under a general policy that prohibited “harassment” or “bullying” of students and has now adopted an explicit policy requiring teachers to use a student’s chosen name and a student’s preferred pronouns.
Think for a moment about the imposition on teacher speech. The question of whether a person’s gender identity can completely override their biological sex is one of the most contentious and debated issues in American culture today. Pronouns and names represent declarations and descriptions. Calling a person “she” is a declaration that the person you’re referring to is, in fact, a woman or girl.
In my view, it is perfectly defensible for a person who dissents from contemporary gender ideology to use a person’s preferred pronouns as a matter of manners. It is also perfectly defensible for a person to politely decline to say something that they do not believe to be true.
In this case, Geary County schools have not only attempted to use a speech policy to settle a live debate, they have declared specific forms of contrary expression to be the equivalent of harassment.
I have the exact same objection to this policy that I do to anti-CRT laws. What, exactly, are we teaching our children here? Are we preparing them to be citizens of a “pluralistic, often contentious society,” or are we teaching them that “offensive” speech should trigger formal, legal complaints? If you think for one second that students educated with that view will suddenly embrace the marketplace of ideas when they enter college, you’re sadly mistaken.
Moreover, equating disagreement with harassment is profoundly troubling, on at least two grounds. First, it is utterly contrary to life in a multi-ethnic, multi-faith, classically-liberal republic. For an increasingly diverse nation to learn to live together, it has to tolerate disagreement on the most important questions of life, questions that go to the heart of a person’s identity and values.
Second, equating disagreement with harassment undermines claims of actual misconduct. I can easily imagine a fact pattern where the refusal to use pronouns degenerates into malice. There’s a difference between a teacher who politely seeks alternatives and accommodation versus a teacher who taunts or mocks a trans student.
In general, harassment claims should be rooted much less in the viewpoint or content of speech and more in its time, place, or manner. In fact, discriminatory harassment is generally best classified as conduct, not speech.
The Supreme Court was right to note that teaching and scholarship are areas of particular constitutional concern. At the same time, curricular control is a hallmark of local control of public schools. How to square the circle? A school can ask teachers to teach the curriculum, grade fairly, and prohibit them from engaging in bullying or harassment without demanding that they squelch their own thoughts.
Indeed, exposure to mature adults who can competently and calmly express disagreement with the prevailing political powers is an outstanding method of educating students to participate in a pluralistic society.
Respect for liberty isn’t innate. It has to be taught. And I fear that our current educational culture wars are doing exactly the opposite. They’re teaching students and parents that the government power is the answer to their intellectual or emotional discomfort. Rather than raising children to engage in debate, we’re teaching them to mimic authoritarian adults.
One last thing …
Last week my favorite sports website, The Ringer, made a grave mistake. It said Ja Morant was the ninth-best player in the NBA. For shame! Ja is in the top five. But I’m quick to forgive, especially when The Ringer included this marvelous highlight reel in its otherwise-flawed piece. Here it is. Enjoy the best of Ja Morant in 2022:
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