Thursday, November 09, 2006
Is there a "don't ask don't tell" de facto policy for teachers?
"Don't ask don't tell" and public school teachers:
A small amount of testimony at the COPA trial referred to the possibility that teachers could be fired or reassigned in some cases if they discuss ("abnormal") “personal information” with students. Does this mean that a teacher could be removed for making “personal stuff” available at a public place on the Internet where kids could find it with search engines?
School boards regulate what teachers present in the classroom, and of course this has been politicized, especially by parents and pressure groups who fear that the religious or filial socialization of their children can be compromised by pluralistic exposure. Teachers generally have more freedom to say what they want on their own time and with their own resources, especially since they are public employees. Generally, teachers’ first amendment rights have been honored, for example, if they are seen by television cameras attending gay events.
There is a long audit trail of case law about this, both within school property and outside the school system. The issue is muddied by the Internet and World Wide Web, with the issues presented by search engines and by “free entry.” There is a balancing between the legitimate First Amendment rights of teachers (and students) and the need to preserve order and, frankly, safety and security in the school systems. There is a legitimate point that teaching, by definition, involves taking responsibility for the behavior of others who may be less cognitive and less competent in accounting for their own actions or in understanding what they find than are adults. After all, that is why the kids must go to school. The issue becomes much less important in practice for teachers who have only honors or AP students, but the reality of the teacher shortage today is that the challenge of dealing with average and special education students should be shared by as many teachers as possible.
The recent controversies, litigations, and constitutional amendment referendums about gay rights – most specifically gay marriage and civil unions – brings up a troubling point. Issues like gay marriage and the “don’t ask don’t tell” policy for gays in the military draw attention to the reality that gays are often (by circularity) cut out of “paying their dues” and taking responsibility for others in normal family and service settings. Sometimes, persons who do not have these responsibilities may be expected to “sacrifice” for the food of people who do have these responsibilities. In this sense, then, gays (and lesbians) are not the equal of heterosexuals in practice.
What happens if kids ask a gay teacher about his home life? If he or she reveals a same-sex domestic partner relationship, is this violating school policy of disclosing “personal stuff” to students? A number of states have passed constitutional amendments banning gay marriage, and a few (like Virginia, which passed the rather punitive Marshall-Newman amendment on Nov. 7) have gone so far as to ban civil unions from any legal recognition. Since a same-sex relationship cannot have legal recognition, such an answer could be seen as an improper disclosure of personal information to students.
There have been cases in some states where teachers have disclosed gay marriages or unions in class and have not been disciplined, but these have tended to occur in states, like California, with a more pluralistic social climate. In many cases, it may be all right for teachers to "tell" if they refer to sexual orientation as "status" (Bill Clinton's word) rather than as psychological interest or a propensity for "conduct." They could refer to a biological or genetic hypothesis, but not to anything deeper about personal choices. That starts to sound like a content-based speech restriction.
The issue bears comparison with the military “don’t ask don’t tell” where, by law, a statement (even in private) that one is gay triggers the presumption that one has a propensity to engage in prohibited acts. Persons have been discharged from the military for disclosing homosexual orientation on personal websites or on social networking sites.
With teachers, a comparable but less draconian situation seems to exist. In fairness to school systems, one must note that their sensitivity to "personal stuff" is a community standards issue; in their world, content that is legitimate in an open adult world might be interpreted, and unfavorably legally, in their protective community, even when discovered accidentally.
There is also a similar problem if a teacher’s statements (in a public place) indicate to others (such as parents or administrators) a “propensity” to show an undue interest in the attractiveness of minors. This would be likely to affect many more heterosexuals than homosexuals (most people caught in chat room stings, as on NBC Dateline, have been heterosexual). This problem is existential: an older person who does not have an intimate relationship with someone his own age (and show complementarity) is likely to be viewed as more vulnerable to “temptation,” even though admitting to “temptation” itself is not defamatory. Teachers (even subs) could get into serious legal trouble (possibly attracting passive solicitation charges) with statements that they view as existential but that could be viewed as self-defamatory by others. There is little experience with this in the law with respect to the World Wide Web, and it is tangential to COPA, but the trial and opinion might give some guidance as to how the open access and search engine issue (and filters or labels) plays out with disturbing or ambiguous speech found by minors. For a gay person, the lack of legal equality (in recognition of adult relationships) could become relevant, because it could make a statement be regarded as “personal” and therefore indirectly solicitous or motivated by illegal intentions. On the other hand, if this legal conundrum is rolled out, we see a lot of deference to "prejudicial thinking" which amounts to a content-based restriction on free speech.
I found, in my own case when I was substitute teaching, that it was very difficult, with certain disadvantaged students, to maintain classroom discipline (“poor classroom management”) when they did not see me as an “equal” who had faced their kinds of life challenges and “manhood” experiences. How does one answer this, as an exercise of faith? The Catholic Church has tried to build a whole priesthood culture around men who do not reproduce, to make them credible as authority figures, as long as they give up their freedom and preach only the Church’s teachings of socialization for “normal people.” Ironically, unmarried women have always been well regarded, often preferred as teachers, and “authority figures” for small children.
It is also important that, given the supposed teacher shortage, that new teachers making a "career switcher" move after retirement still have to invest about $4000 in tuition for licensure before getting a permanent job in most cases. For a gay man, in a political climate in a state that goes out of its way to say that he is not the equal of other more "manly men" as a role model, this does not sound like a sound private investment. (Of course, again there is an existential problem: if one is drawn to other men who he perceives as "better," what does that say about him?) So there is a chilling effect. At the same time, we watch the spectacle of school districts desperately trying to recruit teachers from third-world countries because Americans are appalled by the political climate (as well as the pay) in public schools. That reminds me of the circularity problem that the military has created for itself in recruiting and keeping linguists (with "don't ask don't tell").
It's important to note that some teachers (including subs) can face contingent responsibilities to deal with intimate custodial care issues (as with some special education students), and for an openly gay person, the "DADT" doctrine codified into federal law in 1993 might have legal repercussions even outside of the military. I once was asked if I would mind "helping out in the locker room" and, as a sixty-year-old man, wearing only swimming trunks myself and manning the deep end of a swimming pool on a surprise field trip. I declined. (And I don't swim.)
All of these concepts (regarding speech, legal status for relationships, and forced-intimacy occupations like the military and teaching – all becoming more important as society contemplates ideas like national service) bear parallels that are rather scary.
It's well to review the history of attempts to ban gay teachers in the past, such as the Briggs Initiative in California in 1978, or the Washington State bill in 1986, which defrocked Republican Spokane mayor Jim West had supported. See my footnote link, note 157, and tv link, notes about the PBS Frontline show "A Hidden Life".
Related review of book on teachers' legal rights and free speech rights (Feb 2007).
Follow-up: my last day as a sub in 2005.