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.
News Story from The State
My appalling encounter with shocking and illegal misbehavior of public-school employees, school board members, friends, even a minister caused me great physical and psychological anguish. As this saga began to unfold, my family and I realized we had to escape Marion County South Carolina. But before we relocated, I determined to finish what I had begun: Defend the First Amendment – even if it took me to the highest court in the land.
My tale is one of hundreds occurring across America, especially considering our present-day political environment. News outlets and reporters are under siege as are social media companies and their users. Public employees are at risk knowing something is amiss in their workplace, desperate to alert taxpayers, but intimidated into silence. Citizens contact their representatives and are ignored.
Public employees to teachers to students to citizens dissatisfied with events that are a matter of public concern express distress through letters to newspapers, texting, videos, petitions, marches. Others, as I chose to do, become “whistleblowers in plain sight;” those too terrified to speak publicly become “invisible whistleblowers.”
No matter the avenue of communication to release relevant information to public or governmental entities, the words in the First Amendment of the U.S. Constitution are distinct: “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.”
My determination to speak guaranteed my termination as a teacher. The humiliating public hearing to prove why I should NOT be fired became the longest held hearing involving either attorney: eighteen hours over a three-day period. That depressing experience assured my dismissal which set me on course for a lawsuit, first in federal court in South Carolina and then at the Fourth Circuit in Richmond, Virginia.
Margaret S. Hall v. Marion School District Number 2, 7.26.94 is Case Law. Published (Richmond, VA.: United States Court of Appeals for the Fourth Circuit, 7.26.94). The decision was unanimous, author identified, published, extremely long, and remarkably uncommon. (https://openjurist.org/31/f3d/183/hall-v-marion-school-district-number).
Richard Mark Gergel, my attorney for the South Education Association (SCEA), said our case was one of the most significant First Amendment cases in over a decade to be decided by the Fourth Circuit. Two of the judges were Republican appointed, the third appointed under President Carter; a Republican majority voted unanimously in my favor. Would that happen in this new political era? Gergel also noted school superintendents across the U.S. were watching the outcome, the case was presented at a California school attorneys’ conference, even studied in college classes. Across the nation newspapers and radio and television stations monitored unfolding events.
While Mr. Gergel presented his summation in Federal Court in Florence SC before Judge William B. Traxler, Jr., my tears flowed. I was awestruck hearing his closing comments: “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.”1
All my life I’d taken democracy for granted. I was assured the intangible concept “freedom” protected me, but I had never tested its powerful promise: “Congress shall make no law…abridging the freedom of speech….” Not until my eight day exile at the school district office did I fully appreciate what our Founding Fathers created. Not until I sat isolated from all human contact and with no work assignments did I find time, finally, to research the First Amendment. I knew the First Amendment didn’t protect someone for screaming “FIRE” in a crowded theater if there was no fire. But what DID it protect?
My time in seclusion and in “trouble” offered me the opportunity to learn. I discovered in my ignorance that the magnitude of literature on the First Amendment was extraordinary. The authors of First Amendment Anthology wrote: “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.”
My lone walk with constitutional law introduced me to Marvin Pickering and the teacher-administrative First Amendment dispute that reached 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.”3 Even after the Pickering decision as well as many others, denial of First Amendment rights against public employees endures; my punishment a dreadful example.
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 discovered during my banishment that vast numbers of teachers are not granted their inalienable right of free speech. With almost three decades in the teaching profession I learned by observations and events while teaching in Durham, North Carolina as segregation collapsed, then Florence, South Carolina and finally in Marion and Mullins, South Carolina, that many teachers live in terror of administrative retribution, a fear that paralyzes their voices and assures their submissiveness.
During my eight days in exile, I discovered that after over 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 many public employers interpret the First Amendment as an inalienable right to be used only when “off the job,” like the philosophy implicit in my school superintendent’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, including the workplace.
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 a 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 sojourn in the deserted boardroom that I was convinced 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. Like a powerful steamroller, the self-defeating cycle churns forward, crushing those in its path. As the cycle moves round to the beginning, it leaves in its wake teachers who have, unconsciously, colluded with their own repression, ultimately generating what they most fear—the death of learning.
Why do school administrators, college presidents, and public office supervisors demand silence from their staff? For whatever reason(s) 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 demor- alizing, one can see how such an atmosphere of coercion would undermine one’s aspirations for 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….” 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 or any public employee for that matter do to re-establish democracy in their workplace? The answers are clear; the implementation distinct. First, public school teachers, as well as all public employees, must believe 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 public employees – school superintendents, board members, college administrators, and elected officials. We are obligated to future generations to assure a strong and fair educational system, a safe and legal work environment, and a healthy and sistainable government.
It is imperative that public employees as well as all citizens “Remember This:” Their dissenting voices may disturb the status quo, but as Supreme Court Justice Hughes penned, 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.”5
Indeed, public employees and elected officials 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. 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 many – the majority never made 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 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.
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.
After learning of Mr. Pickering and the heroes that followed, I was proud of their accomplishments and ability to endure. Since others had trod the same path of protest I followed and made it to the end, then so could I. My inspiration was nurtured by my adventure with the Constitution in that dreary secluded 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.
