San Diego Law Review
Document Type
Comment
Abstract
Many public school teachers face a daunting question: What are they allowed to say in the classroom? States are actively passing legislation restricting instruction and discussion regarding Critical Race Theory, sexual orientation, and gender identity. Yet, there is a circuit split in First Amendment jurisprudence regarding the bounds of teachers’ classroom speech. Do these purported curricular restrictions extend to all teachers’ classroom speech? Do these restrictions silence teachers’ lived identities related to race, sexual orientation, and gender identity? The Supreme Court should resolve the circuit split in teachers’ classroom speech analysis to provide teachers the protection to share their lived experiences without fear of termination or litigation.
This Comment carefully examines the existing circuit split that scrutinizes teachers’ classroom speech claims using traditional government-employee speech analysis or student speech analysis. Then, this Comment explores recent state legislation regulating instruction regarding Critical Race Theory, sexual orientation, and gender identity. Finally, this Comment suggests that the Supreme Court adopt an analytical compromise that respects states’ paternal obligations to regulate curricular speech while extending greater protection to speech unrelated to legitimate pedagogical concerns. This proposition respects the Court’s recent decision in Kennedy v. Bremerton School District by maintaining deference to the government speech doctrine and acknowledging the importance of protecting teachers’ First Amendment protections.
DOI
2024
Recommended Citation
J.P. Riley,
Is There Room in the Classroom for the First Amendment? Defining the Doctrine for Teachers’ Classroom Speech,
61
San Diego L. Rev.
185
(2024).
Available at:
https://digital.sandiego.edu/sdlr/vol61/iss1/6