When is free speech not free?

 When is free speech not free speech?

 

Tanner Cross is an elementary school teacher in Virginia.  It is the policy in Virginia for teachers to use the chosen names and pronouns of transgender students.  Mr. Cross testified at a Board meeting that although he was a teacher, he served God first and “will not affirm that a biological boy can be a girl and vice versa because it is against my religion.”  The next day the district put Cross on administrative leave with pay and limited his access to school events, asserting that his comments have a “disruptive impact” on the operation of the school.  Tanner went to court to protest.  A lower court issued an injunction in favor of the teacher.  The district appealed to the Virginia Supreme Court.   That court too supported the injunction.

The Virginia high court used a 1968 Supreme Court decision that supported a teacher’s free speech rights under the First Amendment in matters of school policy.   But while the teacher had a right to speak out against the policy, he did not have a right to disobey the policy.  The school district has a right to maintain workplace efficiency and to reduce disruption.

Now the issue becomes, what happens in the everyday running of the school.  How will the school district balance the teacher’s right to free speech and its interest in maintaining a smooth-running school.  

The answer lies at the boundary where free speech bumps up against action.  Individuals may speak freely but they cannot advocate the overthrow of the organization or its policies nor may they behave (as opposed to speaking) in a way that is disruptive.  If a teacher used his/her free speech rights to create and cause disruption in the operation of the school, that free speech would cross the boundary.

This guide is somewhat akin to yelling fire in a crowded room where there was no fire.  Teachers, as with all citizens, need to decide when a public or employer policy violates their basic core values as individuals.  When that happens, staff should argue for their point of view.  If arguments do not change policy, then the staff person needs to make the personal decision of whether or not he/she wishes to remain a part of the organization.  Disrupting the peaceful operation of the organization is not an option.

There needs to be acceptable channels for staff to disagree with public and/or school policy for whatever reasons the staff person may have.  But those rights and liberties, as with all rights and liberties, also come with responsibility to sustain the orderly operation of the school and allow the school to continue in its basic function.  At the junction of disruption and speech, free speech is no longer free.