The Right to Teach

Abstract

America’s public school teachers are in dire straits; the law offers little solace. The rights teachers have as public employee-citizens do not protect them as educators. A patchwork of employment, labor, and First Amendment protections that comprise the rights of teachers has thus proved inadequate against escalating threats: education budget cuts, high-stakes testing, and privatization. States have meanwhile destabilized tenure and collective bargaining laws, for added measure and leverage.

Against this backdrop, politicized responses to a distressing pandemic and recurrent education culture wars—lately over antiracism curriculum and fetishized parental rights—are pushing a depleted and demoralized profession to the brink. The assaults on all these fronts have tattered the strands of protections said to constitute teacher rights, exposing a threadbare mishmash of limited process rights and illusive academic freedoms.

Teachers deserve better because teachers’ rights are education rights and education rights are teachers’ rights. Following that lesson, this Article is the first to conceive the right to teach as the freedom to educate grounded in an untapped rights repository: state constitutions. State constitution education clauses, specifically, protect schoolchildren as the primary rightholders and intended beneficiaries. Yet even as the right to education imposes duties on teachers, it also confers on them certain privileges and immunities vis-à-vis their indispensable relationship with their students.

State actions that denigrate the teacher-student relationship are therefore constitutionally suspect. Although state actors may approve curricular content and standards, they may not, absent judicial scrutiny, interfere with teaching methods reasonably designed to encourage positive learning relationships and democratic experiences. Nor may state actors subject their teachers to consequences for poor student performance which can be attributed to state- created or tolerated educational inadequacies and inequities. Above all, state actors may not compel teaching practices inconsistent with the state constitutional duty to educate democratically in the classroom.

Keywords: teachers, education, teacher rights, education rights, tenure, collective bargaining, academic freedom, state constitution

JEL Classification: K19, K39, I21, I29, J45, J52