Suspension of flag-stomping teacher upheld: Is teacher speech protected?

The North Carolina teacher who stepped on a flag as part of a lesson on the First Amendment has said his action is protected under the Constitution. But campus speech codes often limit educators' speech. 

A North Carolina superintendent’s recommendation to suspend a teacher for 10 days for stomping on a flag in a lecture about the First Amendment in September was upheld by the board of education on Wednesday.

The suspension of Lee Francis – a first-year history teacher at Massey Hill Classical High School in Fayetteville – has brought renewed attention to the debate over whether educators should have the same protected speech on campus as outside of it.

Mr. Francis is one of a number of educators across the country to face administrative penalties for using a hands-on approach to teach that flag stomping and burning is constitutionally protected speech. The debate was reignited last week when President-elect Donald Trump called for jail time or a loss of citizenship for flag burning, at the same time Hampshire College temporarily removed flags from its Massachusetts campus after students had lowered and later burned one American flag, then protested at its replacement. But the controversy over actual flag desecration as part of a lesson plan has come up time and again, ever since the 1989 US Supreme Court ruling in Texas v. Johnson found that flag burning constituted "symbolic speech" and is protected under the First Amendment.

But the issue is not confined to flag desecration. As the public has gained new ways to express themselves online and through social media, from members of Black Lives Matter to those of the so-called "alt-right," a white nationalist movement, teachers and professors have found campus speech codes don't always offer them the same protections the Constitution does.

"The First Amendment is not synonymous with academic freedom," Michael LeRoy, a law professor at the University of Illinois at Urbana-Champaign, and the author of a study that found an overwhelming majority of professors and lecturers lose First Amendment claims in court, said in a university release. "If you look at the trend lines, the speech rights of public employees are narrowing – and, coincidentally, this is occurring when public speech via social media has become so much more prevalent."

Francis and his lawyer, Roger Allen, maintain the teacher was justified in stepping on the flag several times as part of the Sept. 19 lesson about the First Amendment and Texas v. Johnson. Not only does the Constitution protect verbal and physical expressions of free speech, they said, but his lecture was also an invaluable lesson to the 26 students in his class.

"Ironically enough, I feel like I was being a good American citizen by telling the students about the rights granted to them by the highest court in the country," Francis told The Washington Post in September. "It saddens me that people have taken such a negative turn."

But Cumberland County Schools Superintendent Frank Till wrote in a disciplinary letter dated Sept. 23 that Francis violated a number of district policies.

"The grounds for your disciplinary suspension without pay for a period of 10 days are neglect of duty, failure to fulfill the duties and responsibilities imposed upon teachers or school administrators by the General Statutes of this state, and failure to comply with such reasonable requirements as the board may prescribe," the letter said, as reported by The Fayetteville Observer.

Francis and his lawyer, Mr. Allen, challenged Mr. Till, asking the Cumberland County Board of Education to repeal the suspension and clarify the policies Francis violated. The board sided with Till on Wednesday, accepting his suspension recommendation after eight hours of deliberation. Francis remains on administrative leave until Till sets a start date for the suspension.

The dispute has cut deep into Fayetteville, home to Fort Bragg, the largest military base in the world. Some have come out in support of Allen, including local veterans who have called his lesson a teachable moment, according to The Fayetteville Observer. Others have condemned Francis’s actions, saying it was unpatriotic and disrespectful to families who have lost service members.

Francis is not the first teacher to become embroiled in controversy for teaching about the First Amendment by stepping on a flag. In 2012, Scott Compton, then a teacher at Chapin High School in South Carolina, agreed to resign after he stepped on a flag as part of a lesson. Mr. Compton reached an $85,000 settlement with the district, according to CBS News. In 2015, Jordan Parmenter, an English teacher in Martinsville, Illinois, was fired for stepping on an American flag during a lecture, according to The Chicago Tribune. In 2006, Dan Holden, a seventh grade social studies teacher, received a five-day unpaid suspension for burning two flags in his classes in Stuart Middle School in Kentucky.

David Hudson, author of "Let the Students Speak!: A History of the Fight for Free Expression in American Schools," and a law professor who teaches about the First Amendment, says public school teachers, in particular, receive limited free speech protections.

"It's not that unusual for some teachers to get in trouble for what some think is incendiary political expression," he tells The Christian Science Monitor in a phone interview on Thursday.

A number of Supreme Court rulings have tipped the balance in favor of schools, reducing the First Amendment rights of teachers. The court’s 2006 ruling in Garcetti v. Ceballos found the First Amendment does not prevent public employees from being disciplined for expressions they make on or related to their jobs. In that case, Richard Ceballos, a deputy district attorney in Los Angeles, claimed his employer, the county’s District Attorney’s Office, retaliated against him because he challenged facts in an affidavit.

The 1988 Supreme Court Ruling in Hazelwood v. Kuhlmeier also allowed public schools to censor certain school materials. In that case, the principal at Hazelwood East High School in Missouri removed two articles from the student-run Spectrum newspaper because they were about divorce and teenage pregnancy. The court concluded the newspaper was not a public forum, but rather part of a class assignment and subject to appropriate editing.

Mr. LeRoy, the law professor at the University of Illinois, said a "tipping point" for these First Amendment cases was the Supreme Court’s 1968 decision in Pickering v. Board of Education.

"The Pickering case created a balancing test that later court decisions have since refined," he said. "After Pickering, courts were compelled to weigh the competing interests of public employees and employers on a case-by-case basis."

The case subsequently led to public community colleges, four-year colleges, and universities winning about three-fourths of First Amendment cases in federal and state courts, LeRoy found. In the study, he analyzed 201 lawsuits involving First Amendment claims by professors and lecturers from 1964 to 2014.

LeRoy, in an interview with the Monitor on Thursday, says his study sheds some light on how the law looks at First Amendment cases in public high schools, too.

But he acknowledges that the controversy in North Carolina is an "exquisitely borderline" case.

Francis did not use a racial slur or sexually provocative language in class, says LeRoy.

"On the other hand, he wasn't doing this outside of class. He was doing it in class," says LeRoy. "The courts give more latitude to employers in these cases."