The Volokh Conspiracy - Public High School Teacher Suspended for Left-Wing Political Rants:

Via Drudge, I learn that a high school teacher in Denver has been suspended pending an investigation into remarks he made during class that were recorded by one of his students. According to the Denver Post,

teacher Jay Bennish described capitalism as a system "at odds with human rights." He also said there were "eerie similarities" between what Bush said during his Jan. 28 State of the Union address and "things that Adolf Hitler used to say.

Can Bennish constitutionally be penalized for presenting one-sided political rants to his class? Yes, I believe he can, and, to the extent he was departing from the assigned curriculum, or violating school policy in presenting only one side of an issue, likely should.

It so happens I've recently written about a similar issue [in a forthcoming book review in the Northwestern University Law Review], whether public schools in the 1950s had the authority to exclude Communist teachers from teaching social studies.

An important background assumption is that the very existence of public schools means that the government will to some degree be inculcating values into minor students. Simply by choosing curriculum, textbooks, and engaging in other functions inherent in the education process, the government will inevitably be making value-laden choices that will dictate what students learn about various social, moral, and political issues.... It is hard to disagree with Redish's conclusion that since public schools will inevitably inculcate values, the government has a right to ensure that the teachers it employs are "with the program." But perhaps one lesson of the McCarthy era controversy over employment of Communist public school teachers is that government-run schools create inherent First Amendment problems. Any solution that leaves the government in charge of dictating curriculum, much less directly teaching values, seems second-best from a First Amendment perspective given that, as Redish acknowledges, "the public school educational system is an authoritarian operation." The government's subsidy of certain points of views by teaching them in public schools serves as the equivalent of an implicit tax on competing perspectives, a method for government to get around the prohibition on directly taxing ideas that the government wishes to discourage. To preserve a fair, non-statist, marketplace of ideas, the government, if it must fund education, should simply provide vouchers and let parents decide which values they wish their children to be exposed to. Redish argues that "there is little doubt that a democratic society cannot function effectively absent an effective system of public education," but he does not explain why such a system must be run by, as opposed to simply funded by, the government.

I go on to argue that so long as we live in a second-best world with public schools, government authorities have the right to dictate to teachers what to teach, and to punish those teachers who refuse to comply. I conclude, however, that teachers should only be excluded or punished based on what they actually say in class, not based on their background beliefs:

the implications of allowing school authorities to choose teachers based on how their personal beliefs may affect their teaching are too troubling: May libertarians be forbidden from teaching history courses, because they may be tempted to undermine the statist assumptions so often embedded in public school social studies and history curricula? Can fundamentalist Christians and Jews be prohibited from teaching biology, on the grounds that they may try to undermine the teaching of evolution? Can committed Catholics be prohibited from teaching "health" classes on the grounds that the may try to avoid discussing contraception and abortion, as required by the curriculum? Can conservative Christians be banned from teaching in general, because their views on the morality of homosexuality may lead them to discriminate against gay students?

In short, a public school teacher shouldn't be punished for his background beliefs, though arugably it's constitutional to deny someone a teaching job based on those beliefs (no Klan members teaching a race relations course). But a teacher can be punished for what he says in class.

UPDATE: I've listened to the recording of the class, and this guy is a serious left-wing cliche machine (including some comments on the Drug War I agree with!). If I didn't know better, I'd think it was a satire.

	[David Bernstein, March 2, 2006 at 2:32pm] Trackbacks Public High School Teacher Suspended for Left-Wing Political Rants: Via Drudge, I learn that a high school teacher in Denver has been suspended pending an investigation into remarks he made during class that were recorded by one of his students. According to the Denver Post, teacher Jay Bennish described capitalism as a system "at odds with human rights." He also said there were "eerie similarities" between what Bush said during his Jan. 28 State of the Union address and "things that Adolf Hitler used to say. Can Bennish constitutionally be penalized for presenting one-sided political rants to his class? Yes, I believe he can, and, to the extent he was departing from the assigned curriculum, or violating school policy in presenting only one side of an issue, likely should. It so happens I've recently written about a similar issue [in a forthcoming book review in the Northwestern University Law Review], whether public schools in the 1950s had the authority to exclude Communist teachers from teaching social studies. An important background assumption is that the very existence of public schools means that the government will to some degree be inculcating values into minor students. Simply by choosing curriculum, textbooks, and engaging in other functions inherent in the education process, the government will inevitably be making value-laden choices that will dictate what students learn about various social, moral, and political issues.... It is hard to disagree with Redish's conclusion that since public schools will inevitably inculcate values, the government has a right to ensure that the teachers it employs are "with the program." But perhaps one lesson of the McCarthy era controversy over employment of Communist public school teachers is that government-run schools create inherent First Amendment problems. Any solution that leaves the government in charge of dictating curriculum, much less directly teaching values, seems second-best from a First Amendment perspective given that, as Redish acknowledges, "the public school educational system is an authoritarian operation." The government's subsidy of certain points of views by teaching them in public schools serves as the equivalent of an implicit tax on competing perspectives, a method for government to get around the prohibition on directly taxing ideas that the government wishes to discourage. To preserve a fair, non-statist, marketplace of ideas, the government, if it must fund education, should simply provide vouchers and let parents decide which values they wish their children to be exposed to. Redish argues that "there is little doubt that a democratic society cannot function effectively absent an effective system of public education," but he does not explain why such a system must be run by, as opposed to simply funded by, the government. I go on to argue that so long as we live in a second-best world with public schools, government authorities have the right to dictate to teachers what to teach, and to punish those teachers who refuse to comply. I conclude, however, that teachers should only be excluded or punished based on what they actually say in class, not based on their background beliefs: the implications of allowing school authorities to choose teachers based on how their personal beliefs may affect their teaching are too troubling: May libertarians be forbidden from teaching history courses, because they may be tempted to undermine the statist assumptions so often embedded in public school social studies and history curricula? Can fundamentalist Christians and Jews be prohibited from teaching biology, on the grounds that they may try to undermine the teaching of evolution? Can committed Catholics be prohibited from teaching "health" classes on the grounds that the may try to avoid discussing contraception and abortion, as required by the curriculum? Can conservative Christians be banned from teaching in general, because their views on the morality of homosexuality may lead them to discriminate against gay students? In short, a public school teacher shouldn't be punished for his background beliefs, though arugably it's constitutional to deny someone a teaching job based on those beliefs (no Klan members teaching a race relations course). But a teacher can be punished for what he says in class. UPDATE: I've listened to the recording of the class, and this guy is a serious left-wing cliche machine (including some comments on the Drug War I agree with!). If I didn't know better, I'd think it was a satire.