“Teachers are as a class the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.”
Pickering v. Board of Education, United States Supreme Court, 1968

Author’s Note


THE FIRST AMENDMENT

Congress shall make no law
respecting an establishment of religion,
or prohibiting the free exercise thereof:
or abridging the freedom of speech,
or of the press; or the right of the people
peaceably to assemble, and to petition
the government for a redress of grievances.



Often years are required to relive a harrowing experience, much less put those memories to paper. Such is the case with this story. My appalling encounter with callous and illegal behavior of public-school employees, school board members, friends, even a Presbyterian minister caused me physical and psychological pain. As this experience began to unfold my family and I realized we needed to escape Marion County South Carolina. But before we relocated, I determined I must finish what I started: Defend the First Amendment – even if it took me to the highest court in the land.

My story is one of hundreds occurring across America, especially considering our present-day political climate. Newspapers are under siege as are social media companies and their users. Public employees are at risk knowing that something is amiss in their workplace. Some, as I chose to do, become “whistleblowers in plain sight” as opposed to “invisible whistleblowers.” Public employees to teachers to students want to express their dissatisfactions on issues of public concern through texting, videos, petitions, marches. But no matter the avenue of communication to release relevant information to the public or governmental entities, the words in the First Amendment of the U.S. Constitution are clear: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Amazingly even after the findings of Pickering v. Board of Education, U.S. Supreme Court, 1968, denial of First Amendment rights against public school teachers as well as public employees endures.

Hall v. Marion School District II is Case Law, its decision unanimous, published, and lengthy can be found here.

Hall v. Marion School District II

My attorney for the South Education Association, Richard Mark Gergel, said at the time our case was one of the most significant First Amendment cases to be decided by the Fourth Circuit Court of Appeals in Richmond VA. He noted school superintendents across the U.S. were watching the outcome, the case was presented at a California school attorneys’ conference, and studied in college classes. When Mr. Gergel ended his summation in Federal Court in Florence SC before Judge Traxler, tears flowed down my cheeks. I was awestruck hearing his closing remarks. “We believe, Your Honor, that the reinstatement of Ms. Hall will vindicate the highest aspirations of our Constitution, and will afford this lone dissenter, this one who sits on the half of the Courtroom with few advocates, the one designed to be protected by the First Amendment, a safe harbor under law.”

All my life I’d taken democracy for granted. I was assured the intangible concept “freedom” protected me, but I never tested its powerful promise: “Congress shall make no law…abridging the freedom of speech….”

Not until my eight day exile at the district office did I fully appreciate what our Founding Fathers created. Not until I sat isolated from everyone and with no work assignments did I have time to research what free speech and the First Amendment really meant. Of course I knew I couldn’t scream “FIRE” in a crowded theater and not be arrested.

My time in isolation and in “trouble” offered me the opportunity of education. The magnitude of literature on the First Amendment is extraordinary, the authors of First Amendment Anthology writing that the Constitution is “…characterized by heavy volume, much ideology, considerable passion [and, in the words of Justice Brennan, output]…tends to be as ‘uninhibited, robust, and wide-open’ as the First Amendment itself contemplates.” 1

My walk with constitutional law introduced me to Marvin Pickering and the first teacher-administrative First Amendment dispute to reach the highest court in our land. The United States Supreme Court, in its 1968 bold message of freedom, emphatically supported the rights of public employees to speak out on matters of public concern. That landmark case, Pickering v. Board of Education, paralleled my situation, stating in no uncertain terms: “Teachers are as a class the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” 2

Educational institutions teach that to maintain a democratic government by the people, of the people, and for the people, we, that governing body, must acknowledge that free speech, even though we might not always agree with what is said, is indispensable to liberty. But what we are taught in school is not always what we experience after graduation. Alarmingly, a very different world awaits many who pursue a job in the public arena. In view of my personal experiences as a public school teacher and by reading about similar problems others encountered, I became convinced during my eight days of banishment that vast numbers of teachers are not granted their inalienable right of free speech. With over two decades in the teaching profession, I was taught by past observations and events in Marion County that many teachers live in terror of administrative retribution, a fear that paralyzes their voice and assures their submissiveness.

During my eight days in exile, I discovered that after almost five decades since Mr. Pickering and the Supreme Court Justices met, retaliation continues as one legal case of administrative intimidation after another moves through the judicial system. It appears that many public employers interpret the First Amendment as an inalienable right to be used only when “off the job,” like the philosophy implicit in Dr. Foil’s “Remember This.” In other words, public employees are expected to hang their mantel of liberty on the coat rack when they walk through the door of their workplace. But the United States Supreme Court interprets the Constitution differently when addressing matters of public concern.

My readings also introduced me to men and women across America who were coerced by their supervisors, harassed, tormented until their health broke, who gave up and quit, or were dismissed, as I, for criticizing how my public employer was spending tax dollars. But more significantly my research reintroduced me to our Constitution, the supreme law of our land, the framework of our government and of our rights and liberties as its citizens. This powerful document stands as the shield of democracy, behind which we govern ourselves as free people, its First Amendment protecting our right publicly to communicate ideas, concepts, thoughts, and beliefs. Indeed, this powerful amendment is the vehicle by which we as citizens of this country are empowered to debate public policy openly and freely and without fear of retaliation.

It was during my stay in the boardroom at the district office that I became absolutely convinced that there is a direct correlation between repression of open debate and the demise of our educational system. Repression, however subtle, is a method to silence teachers. When teachers capitulate due to self-preservation, they unintentionally endorse this method of management, ultimately allowing themselves to become victims, robbed of their voice to shape the educational process. Thus a cycle of educational destruction is set into motion. Mute teachers exacerbate educational problems. Tragically, acquiescence to administrative tyranny has an intensely dangerous consequence: It expands the circle of victims to include students.

Once teachers relinquish their right of free speech, they often come to believe they have little to contribute. This can diminish self-esteem which, in turn, diminishes enthusiasm. Unhappy teachers beget unhappy students. The self-defeating cycle churns forward, crushing all who stand in its path. As the cycle moves back up to the beginning, it has left in its wake teachers who have, unconsciously, colluded with their own repression, generating what they most fear—the death of learning.

Why do school administrators demand silence from teachers? For whatever reasons my story and the stories of others reveal that totalitarianism is, contradictory as it may seem, flourishing within our democratic society. Since silence is stifling and submissiveness demoralizing, one can see how such an atmosphere of coercion would undermine one’s aspirations for teaching or any public service profession.

By virtue of the correlation between our self-respect and our lack of freedom to speak and its ultimate threat to the educational process and democracy itself, I propose that free speech, especially in the educational system, is much more than a constitutional privilege: It is a moral obligation. In the words of Supreme Court Justice Brandeis, “Those who won our independence believed…that public discussion is a political duty….”3 Public discussion created our democratic society; open debate brought life and liberty to its people. It is, in my opinion, the very essence by which we can and we must revitalize our weakened educational system.

But what can teacher-citizens do to re-establish democracy in their school systems? The answers are clear; the implementation distinct. First, public school teachers, as well as all public employees, must believe that they are citizens first, employees second, and as such are granted under the United States Constitution the right to protected speech when addressing matters of public concern.

Secondly, they must demand that their rights as citizens be ratified and respected by their administrators and supervisors.

And lastly, but most significantly, they must acquire the courage to assert their rights; they must liberate their voices as the most powerful instrument they have in initiating reform and holding public officials accountable. It will be their UNITED voices of freedom that must be heard above the unconstitutional command for SILENCE.

We must never be silent; we must take to the streets, question authority, picket, petition, walk-out, sit-in, write letters, strike, meet with government officials, and make demands on our employees – school superintendents, board members, and elected public officials. We are obligated to future generations to assure a strong and fair educational system, a fair and legal work environment, and a healthy government.

It is imperative that public employees and all citizens “Remember This:” Their dissenting voices may disturb the status quo, but as Supreme Court Justice Hughes wrote, such a right must be acknowledged even if it “…induces a condition of unrest, creates dissatisfaction with conditions as they are, and…stirs people to anger.” 4

Indeed, public employees and public leaders unable to tolerate criticism shake the very foundation of our free society, their authoritative behavior threatening the democratic principles the framers of our Constitution set forth, their contempt for free speech and free press a denial of the independence our soldiers fight to the death to protect. And it makes a mockery of public officials’ and soldiers’ oath: “I do solemnly swear that I will support and defend the Constitution of the United States of America, against all enemies, foreign and domestic….”

My story is one of hundreds – the majority never shared with the public. It is a story critical of school administrators and school boards who demand silence rather than revere the opinions of others and of teachers who empower those individuals by their very acquiescence to oppression. When our teachers do not speak and when our administrators do not listen, is it any wonder then that Johnny cannot read?

The victims of the tyrannical philosophy of silence practiced by school administrators are the teachers; but ultimately the victims become our children. The victims of public agencies run by despotic rulers who demand silence are the employees; but ultimately the victims become all citizens of this country as well as America itself.

As Professor Meiklejohn so eloquently and persuasively explained:

The primary social fact which blocks and hinders the success of our experiment in self-government is that our citizens are not educated for self-government. We are terrified by ideas, rather than challenged and stimulated by them. Our dominant mood is not the courage of people who dare to think. It is the timidity of those who fear and hate whenever conventions are questioned. 5

As my story unfolded it became a story for all public servants, to those who accept and are stimulated by challenges, for those who are timid and terrified. But especially, this story is for those who “hate whenever conventions are questioned.” There is a lesson to be learned in the telling of this tale, a lesson that the voice of freedom will ultimately triumph. We must remember though, that our inalienable rights will prevail only if we remain steadfastly vigilant against those who would deny us our freedom to speak and to write our concerns.

Let us heed the warning that James Madison, the “Father of our Constitution,” and drafter of our powerful and robust First Amendment, penned:

A popular Government, without popular information,
Or the means of acquiring it,
Is but a prologue
To a Farce or a Tragedy. 6

After having learned of Mr. Pickering and the heroes that followed, I was proud of their accomplishments and of their ability to endure. Since others had trod the same path of protest I followed and made it to the end of that trail, then so could I. My inspiration was nurtured by my adventure with the Constitution in that dreary isolated room at the district office and by the powerful message Supreme Court Justice Charles Hughes declared:

The right to speak freely and to promote diversity of ideas or programs is therefore one of the great distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute. It may, indeed, best serve its high purposes when it induces a condition of unrest, creates dissatisfaction with conditions as they are, and even stirs people to anger. 7




AUTHOR’S NOTE

1. Supreme Court Justice Brennan, New York Times Co. v. Sullivan (Washington DC: The United States Supreme Court, 1964).

2. Steven H. Shiffrin and Jesse H. Choper, The First Amendment: Cases-Comments-Questions (St. Paul, MN: West Publishing Co., 1991), pp. 526–527.

3. Supreme Court Justice Brandeis, Whitney v. California (Washington DC: The United States Supreme Court, 1927.) Many scholars believe that Brandeis’s comments on this case are perhaps the greatest defense of freedom of speech ever written by a member of the high court.

4. Supreme Court Justice Charles Evans, Terminiello v. Chicago (Washington DC: The United States Supreme Court, 1949).

5. Alexander Meiklejohn, “The First Amendment Is An Absolute,” Ronald E. Lively, Dorothy E. Roberts, Russell L. Weaver, eds. First Amendment Anthology (Cincinnati, OH: Anderson Publishing Co., 1994), p. 3.

6. Anthony Lewis, Make No Law (New York, NY: Random House, 1991), p. 236.

7. Charles Evans Hughes, De Jonge v. Oregon (Washington DC: The United States Supreme Court, 1937).

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