Gay Talk: Protecting Free Speech for Public School Teachers

Journal of Law and Education, April 2014

47 Pages Posted: 21 Jul 2013 Last revised: 8 Jul 2021

See all articles by Stephen Elkind

Stephen Elkind

New York University School of Law

Peter Kauffman

New York University School of Law

Date Written: July 21, 2013

Abstract

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education context. Due to the harms restricting teachers’ speech about homosexuality can cause students, not to mention community members and the teachers themselves, this paper argues that when the Supreme Court revisits the question it left open in Garcetti, it should create an exception for both university professors and public school teachers.

Keywords: Garcetti, First Amendment, Constitional Law, Education, Gay, LGBT, Teacher

Suggested Citation

Elkind, Stephen and Kauffman, Peter, Gay Talk: Protecting Free Speech for Public School Teachers (July 21, 2013). Journal of Law and Education, April 2014, Available at SSRN: https://ssrn.com/abstract=2292809 or http://dx.doi.org/10.2139/ssrn.2292809

Stephen Elkind (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Peter Kauffman

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
135
Abstract Views
1,564
rank
269,187
PlumX Metrics