The Legal Trap

Not only do the bureaucratic ways of schools smother creative ideas by the way in which they operate, but it begins to look as though the problem is even deeper, in the legal structure, or lack thereof, that governs schools, teachers, and their supervisors.

On the threshold of starting my blog, a comment on a blog flyer that my wife gave me kept itching in the back of my mind. It warned sternly against blogging about the workplace, pretty much what I have intended to do, albeit in what I like the think as a balanced, nuanced fashion.

Sometime back, I had spoken to a lawyer at our state educational association, who had issued no such warning, but did refer me to website guidance for blogging, which warned against defamatory comments, and all the obvious indiscretions that could lead to censure or legal action against the blogger. Fine enough – I truly see no villains, but primarily people of various levels doing the best they can under often trying circumstances.

But the itch at the back of mind gave me a reprieve from the moment of launch (Coward!), and I once again called the legal department with the intention of talking with the same lawyer. I ended up talking to a different lawyer, who minced no words. “First Amendment rights in the work place are pretty much gone in the current environment,” he intoned. Further, any given statement is not protected, though context would still matter and the specific facts. “Still, risky to proceed with comment about the work place.” Anything considered “disruptive” to the process of the work place could be considered grounds for action by an employer, including any claims that the authority of supervisors has been undermined.

For myself as a writer/blogger, the implication is clear. However balanced and nuanced, however understanding of all the complex vectors at work on all players, I still run significant risk of being labeled “disruptive” by a supervisor who takes exception to my conclusions.

The lawyer cited a case he is currently working, in which a teacher encountered criticism for critical comments. Initially there was no discipline, but when the teacher wandered a bit from guidelines later, the administration pounced at a pretext for getting rid of the troublemaker. This is a story familiar to all staff who have been in schools for any time, and serves a chilling effect on dissent. In fairness, the stories don’t discriminate between teachers perhaps better let go than kept, and those of value who open their mouths to the point that a supervisor considers it a challenge to authority. Nor between legitimate critique and pique based upon personality.

It doesn’t take much for this habitué of school work places to recognize that my honest attempt to elucidate a dysfunctional byway of the bureaucracy could be taken by an individual above me as insubordination. Partly because I am a political animal, partly because I prefer a decision that I disagree with to no decision at all, I have managed not to run aground to this date. To the contrary, I have at times felt higher levels have had my back. But stories to the contrary do abound, involving individuals perhaps not so cautious as I.

So. I contemplate the wisdom of writing in anonymity. In fact, that is what I have chosen to do.

Questions abound. What is the basis in law for the current court holdings? Essentially feudal, in that bosses are given absolute authority? Ownership of property, in that bosses represent in effect a landed authority, as the titular representative of the public? If so, how does that apply to a public, tax supported bureaucracy, whose legitimacy ultimately rests on the consent of the governed and of the taxpayer? Or, more to the point, an organization that exists not for the profit of investors, but for the education of kids.

And the fundamental question. Where public education reform continues to trudge an uphill battle, how can we afford to shackle the speech of arguably some of the most important actors – teachers and other line staff?

One of the more pragmatic justifications for free speech is the illumination it sheds on all manner of process. Those governing are forced to answer to the governed. Where government provides insufficient grounds for actions, government is replaced. So do the media, the opposition political party, the whistleblowers all bring light to circumstances that those in power try to hide or have ignored. Where bureaucracies become unresponsive and lack creativity, whether automobile companies, public schools, or federal or state or local government, it is often because neither external nor internal light shines sufficiently.

By extension, the legal limitations on speech of teachers become as important as the bureaucratic habit of simply not listening to what teachers have to say. The former is chilling; the latter is a habit reflecting the worker rather than professional status of teachers in the eyes of their superiors. The public is left with the comments of outsiders — the professors, the pundits, the politicians who rightly probe for change, but without the richness of teachers who most directly interface with students in the unit of the enterprise, the classroom. This is not a call for revolt, but an assertion that absolutely crucial voices are muted.

(Coming attractions: professionalism briefly discussed….. part of the reform needed in concert with more legal protections….. Compare with docs, professors. Also, “loyalty” is the binding concept for workers and bosses.)

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