Journal of Free Speech Law: “Regulating LGBTQ Speech in the Classroom,” by Caroline Mala Corbin

The article is here; the Introduction:

Public school teachers have found themselves in a free speech vise. Their speech has become more regulated than ever by both the left and right. In particular, public school teachers across the country have found their speech relating to LGBTQ students and issues tightly regulated by government-mandated speech codes. In left-leaning states, some religious teachers have objected to schools forcing them to address their transgender and nonbinary students by their preferred names and pronouns under anti-discrimination policies. In right-leaning states, teachers have objected to the silencing of any discussion around LGBTQ issues under “Don’t Say Gay” laws. In both cases, the government seeks to regulate the content of the teachers’ speech, an action which would, in other circumstances, raise serious First Amendment questions. Does this level of control over what public school teachers may say in their classrooms violate the Free Speech Clause? Should it?

Under existing free speech jurisprudence, anything that teachers say while discharging their job responsibilities is not protected by the Free Speech Clause. When teachers speak “pursuant to their official duties,” like classroom instruction, they are deemed to be speaking as the government and not as a private citizen. This classification as government speech is significant because the Free Speech Clause protects private speech from the government, not government speech from itself. In fact, the relatively new government speech doctrine declares that the Free Speech Clause does not cover government speech.

This essay argues that the fundamental problem with the government employee speech doctrine is that it mistakenly assumes that the Free Speech Clause protects only speakers and not audiences. After all, the premise of denying any free speech protection to public employees speaking pursuant to their official duties is that the government, rather than a private person, is the real speaker. But the Free Speech Clause cares as much about ensuring an unimpeded stream of speech for audiences as it does about ensuring that speakers have the freedom to speak their mind. Prior cases involving government employee speech astutely recognized that the Free Speech Clause protected audiences as well as speakers; indeed, it trained its sights on protecting audiences rather than speakers. Unfortunately, this insight has been lost in the abrupt adoption of the government speech doctrine.

If the LGBTQ regulations are evaluated with an eye on the value of the public school teacher’s speech for audiences rather than speakers, then requiring teachers to use appropriate pronouns for transgender and nonbinary students benefits the students addressed, while barring teachers from discussing issues related to sexual orientation and gender identity actually harms rather than helps student audiences, which include many LGBTQ students.

Part I of this essay describes the competing laws regulating teachers’ speech about LGBTQ students and LGBTQ subjects. One set requires public school teachers to use the names and pronouns that match their students’ gender identity. Another, exemplified by so-called “Don’t Say Gay” laws, forbids instruction on sexual orientation or gender identity altogether. Part II describes current law regarding government employee speech, particularly the rule that withholds free speech protection for public employees speaking pursuant to their official duties. Part III explains how this rule overlooks that the Free Speech Clause is as much about audiences as about speakers; therefore, the fact that the government alone may be speaking should not lead to the conclusion that government employee speech deserves no free speech protection. Part IV applies a more audience-focused free speech test to public employee challenges to the laws from Part I.