First, why is the @ACLU taking the side of compelled speech? Second, Loudon County…again?! https://t.co/o9zCyZ3HWc

— Robert Pondiscio (@rpondiscio) October 16, 2021

It’s Loudoun people! And since it’s emerging as a toxic edge case you’re going to hear about it more.

More seriously, this is a take you are hearing a lot. But it seems like there are two actually complicated questions here for schools (and then also the overlay that a lot of people are surprised to see/concerned about the ACLU’s rapidly evolving position on speech questions more generally and their decision to join this case, what that signals, but that’s a separate issue).

First, teachers engage in compelled speech all the time. K-12 teachers don’t enjoy free speech rights the way we generally think of them or in the same way college professors do. For starters, K-12 teachers teach a state determined curriculum. So the issue here is not cut and dry in school if the state or a school division determines a policy about what to call students and pronouns and there is a rational basis for that policy. And as with some other recent episodes, your first obligation as a public employee is to legal policy not your own religion or political point of view.

Second, I’m not sure it’s cut and dry out of school either. It’s established since the late 1960s that teachers do enjoy First Amendment rights outside of school, including about school related issues, if they’re acting in a private capacity. A 2006 Supreme Court case eroded this right somewhat for public employees in relation to their job but you still can’t, say, fire a teacher for just stating a view on a school policy question. But it’s also established that there is a variety of conduct out of school that makes it impossible for a teacher to do their job effectively (the scope of this, a lot of which was sexist, has thankfully narrowed over the years).

Those issues seem like they will collide here? It hardly seems an unreasonable argument that a teacher who engages in out of school political activity that is clearly anti-transgender can’t effectively operate in a school context where there are transgender students.That’s not “safetyism” run amok from where I sit. Rather, it’s a line that is probably sometimes obvious and sometimes more grey – especially because in today’s context people disagree about what’s a political statement and what’s an attack on someone’s humanity. This all also seems complicated for the teachers unions.

While one faction in this debate seems to forget that transgender students are a fraction of a fraction of students another faction seems to forget that public schools have an obligation to be welcoming to all kids, and we’re talking about kids here. Legal questions aside, if, within reason, you really can’t call a young person what they want to be called, perhaps teaching isn’t the line of work for you anyway?

If you’re a First Amendment lawyer with some school law experience I’d like to hear from you and your thoughts on these questions.