Locking up the Marketplace of Ideas and Locking out School Reform: Courts' Imprudent Treatment of Controversial Teaching in America's Public Schools


Courts have recognized two primary, oft-conflicting interests in teacher speech cases: (1) a societal interest in exposing students to a robust exchange of ideas, usually promoted by protecting teachers' academic freedom, and (2) a broad and unspecified, but not unconstrained, state interest in value inculcation, usually promoted by limiting teachers' academic freedom. In this Article, Professor Welner explores the legal landscape for teachers who use controversial instructional methods or materials in the classroom. He demonstrates that the current constitutional framework courts most often apply to these cases limits courts' analyses to relatively meaningless inquiries based on one or more of three superficial considerations: (1) The courts should not interfere with democratic decisions made by locally elected school boards; (2) teacher speech is protected only if it addresses a matter of public concern; and (3) because it is part of the curriculum, teacher classroom speech is subject to district regulation and given little, if any, protection. Following this examination of legal approaches, Welner explores the values and assumptions underlying these court decisions in light of present-day realities in American schools, as exemplified by three representative and widespread school reform policies. He concludes by offering a rubric for expanding the current legal framework to better account for the special roles played by American schools and teachers.

About the Author

J.D., UCLA School of Law, 1988; Ph.D., UCLA School of Education, 1997. Assistant Professor, University of Colorado at Boulder, School of Education; co-director of the Education and the Public Interest Center (EPIC).

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