Teaching English in English
WHILE REVIEWING CALIFORNIA'S "English Language in Public Schools" law, the 9th U.S. Circuit Court of Appeals showcased a three-way circuit split on the degree to which teachers' instructional speech to their students is protected by the First Amendment. Enacted by California voters through a 1998 ballot initiative, the law known as Proposition 227 says that, "all children in California public schools shall be taught English by being taught in English." At issue in the 9th Circuit case California Teachers Ass'n v. State Bd. of Educ., No. 99-56784, was an enforcement mechanism making teachers personally liable if parents can prove that a teacher failed to present the curriculum predominantly in English. The teachers who filed suit argued that the First Amendment protects instructional speech and that Prop. 227's mandates are so vague that teachers fearing liability will err on the side of caution by curtailing protected speech. Because there are no U.S. Supreme Court opinions directly addressing instructional speech, the circuit courts have looked only to analogous situations. Drawing on the high court's 1988 decision in Hazelwood Sch. Dist. v. Kuhlmeier, a case dealing with the free-speech rights of students, the 1st, 2d, 7th, 8th and 10th circuits have held that instructional speech is protected, but that states may restrict such speech for reasons reasonably related to pedagogical concerns. The 4th and 5th circuits, however, turned to the high court's 1968 decision, Pickering v. Bd. of Educ. and its 1983 ruling in Connick v. Myers, both of which dealt with the free-speech rights of public employees. Under the Pickering/Connick approach, instructional speech receives no protection unless it involves a matter of public concern. States may regulate instructional speech about matters of public concern only if their interest in workplace efficiency and lack of disruption outweighs a teacher's interest in expression. Although the 9th Circuit applied that test in a 1982 case, apparently the court does not consider itself bound by it. The 3d Circuit adopted a third test derived from two other Supreme Court cases dealing with official governmental speech, 1991's Rust v. Sullivan and 1995's Rosenberger v. Rector & Visitors of Univ. of Va. Under Rust/Rosenberger, if a teacher's instructional speech conveys a government message, the teacher as an individual would have no right to First Amendment protection. Despite parsing the various positions, the 9th Circuit concluded that it need not endorse any of the three tests, because even under the most protective of standards -- the Hazelwood test -- Prop. 227 was not unconstitutionally vague. Factors leading to the court's conclusion included the law's restrictive scope (governing the presentation of curricula, but not more informal communications) and the fact that only teachers who "willfully and repeatedly" violate the law will have to answer to parents. |