Dirty Words in the Classroom: Teaching the Limits of the First Amendment

66 Tennessee Law Review 597 (1999)

92 Pages Posted: 7 Oct 1999 Last revised: 25 Aug 2019

See all articles by Merle Hope Weiner

Merle Hope Weiner

University of Oregon School of Law

Abstract

Dirty Words in the Classroom: Teaching the Limits of the First Amendment analyzes whether a public school high school teacher could (and should) be fired for bringing into the classroom a jacket that said, "Fuck the Draft" in order to illustrate the holding of Cohen v. California. Similarly, the article considers the First Amendment protection currently afforded a public high school teacher who discusses the details of the Starr Report in a lesson on the impeachment proceedings against President Clinton. The scenarios force an analysis of the current tension between the desire to inculcate in children certain values, like civility, and the need to prepare students to participate in self-government. The analysis, in turn, raises a variety of interesting issues, such as the adequacy of existing First Amendment protection for teachers' in-class speech, the principled basis by which teachers might be entitled to more First Amendment protection than at present, and the differences in types of teacher speech.

A split currently exists among the circuits of the United States Court of Appeals as to the correct test for analyzing teachers' in-class speech under the First Amendment. The article describes the existing legal tests and contends that both tests are insufficient for protecting a certain type of speech that is essential to our democracy. After agreeing with Professor Shauer's call for a more "institution-specific" approach to First Amendment analysis for cases involving the government's own enterprises, the article provides a theoretical basis for arguing that heightened constitutional protection is needed for the public school teacher's in-class speech, drawing upon such scholars as Alexander Meiklejohn, Amy Gutmann, and Charles Beard. The article also suggest some practical reasons for allocating decision-making autonomy to certain teachers. The article concludes by offering a new legal test for evaluating some teachers' in-class speech and by addressing critics' potential concerns.

Keywords: speech, First Amendment, schools, children, democracy, education

Suggested Citation

Weiner, Merle Hope, Dirty Words in the Classroom: Teaching the Limits of the First Amendment. 66 Tennessee Law Review 597 (1999). Available at SSRN: https://ssrn.com/abstract=184577

Merle Hope Weiner (Contact Author)

University of Oregon School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States
541-346-3857 (Phone)
541-346-1564 (Fax)

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