Balancing Teachers’ Liberty Against Students’ Right to Unbiased Education

Updated:
Posted in: Constitutional Law

The Alagoas (a Brazilian northeastern state) House of Representatives has recently overruled a governor’s veto to pass the Educational Neutrality Act (ENA) (“Programa Escola Livre”), a law on public education allegedly restrictive of teachers’ rights to freedom of expression. The bill’s proponent, State Representative Ricardo Nezinho, argued on his memorandum “that biased teachers and book authors have been notoriously influencing students’ political ideologies and imposing behavior and moral patterns opposed to parents’ private beliefs”.

The law approval had immediate negative repercussions and led the Federal Department of Education (Ministério da Educação) to require the Brazilian Attorney General to initiate legal proceedings to invalidate the law on the basis that “restricting teaching autonomy offends the Brazilian Constitution by censoring methods, prohibiting open debates on schools and restricting students learning rights”. Nevertheless, ENA is not an oxymoron, as it proposes to comply with the principles of ideological, religious, and political neutrality and liberty; pluralism in academic space; recognition of students’ susceptibility to learning processes; and parents’ rights to direct the upbringing, education, and care of their children.

These principles are, in general, agreed-upon principles in legal culture, and consistent with the Brazilian Law of Policies and Basis of the National Education, by which “education shall be based on the principles of solidarity; autonomy to learn, teach, research and spread culture, ideas, art and knowledge; pluralism of ideas and pedagogical methods; and tolerance.”

More specifically, ENA prohibits teachers from (i) practicing political, religious, ideological, or philosophical indoctrination; (ii) abusing students’ inexperience or immaturity in order to co-opt pupils into a particular religious, ideological, or political perspective; (iii) discriminating students because of political, ideological, moral, or religious beliefs; (iv) supporting a religion, ideology, or political preference in school; (v) inciting students to participate in demonstrations or public acts; or (vi) being biased against theoretical perspectives.

Therefore, manifesting personal preferences is not prohibited under ENA, although reflective thinking is required, i.e. an “active, persistent, and careful consideration of any belief, or supposed form of knowledge in the light of the grounds that support it and the further conclusions to which it tends”. Reflective thinking also implies accepting that knowledge is relative, and not singularly objective and absolute. For not being neutral, teachers dedicated to student learning should, instead of inculcating ideas and personal preferences, admit dissent and differences in scholarly dialogue.

In a nutshell, teachers must rigorously scrutinize information presented in school lessons, as long as dubitando ad veritatem pervenimus (“by means of doubt, we arrive at the truth”). Taking a page from Brazilian pedagogist Paulo Freire, “to teach is not to transfer knowledge but to create the possibilities for the production or construction of knowledge”; “whoever teaches learns in the act of teaching, and whoever learns teaches in the act of learning” (docendo, discitur).

Teachers must accordingly struggle for personal and intellectual growth of their students in a democratic and open learning academic environment, devoid of oppression. The U.S. Court of Appeals for the Fifth Circuit recognized in Burnside v. Byars (1966) that “school officials cannot ignore expressions of feelings with which they do not wish to contend [and] cannot infringe on their students’ right to free and unrestricted expression as guarantee to them under the First Amendment to the Constitution.” Moreover, the U.S. Supreme Court held in Ambach v. Norwick (1979) that public schools must advocate more dialogues and intense communication in schooling methods, open to multiple sources of information and different paradigms and “helpful as an assimilative force by which diverse and conflicting elements in our society are brought together on a broad but common ground.” Indeed, “[t]he classroom is peculiarly the “marketplace of ideas” [and] the Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues.” Keyishian v. Board of Regents, 385 U.S. 589 (1967). This framework should, in the long run, promote students’ autonomy. One of the most important functions of schools, according to educational studies expert Michael Apple, is indeed to prepare students for participation in a vibrant democracy, to sort through arguments, to have evidence for their claims.

This issue is invariably linked to preceptors’ autonomy. The scope and limits of teachers’ free speech rights, vis-à-vis their particular professional duty of supervising and disciplining students without their personal biases negatively affecting pupils, have been addressed by courts of different jurisdictions in the United States. In general, precedents have affirmed some restrictions on teachers’ free speech rights in the classroom.

Even though teachers have academic autonomy, including the right to speak freely about their subject, to raise questions about traditional values and beliefs, and to select appropriate teaching materials and methods, the Supreme Court recognized in Ambach v. Norwick that a “teacher serves as a role model for his students, exerting a subtle but important influence over their perceptions and values.” The U.S. Court of Appeals for the Seventh Circuit held, moreover, that a student’s lack of intellectual skills requires greater “direction and guidance from those better equipped by experience and reflection to make critical educational choices.” Accordingly, “the community [and officials responsible for formulating the curriculum] has a legitimate, even a vital and compelling interest in the choice of and adherence to a suitable curriculum for the benefit of our young citizens” that does not violate the professor’s First Amendment right to free speech.

It follows that in public education, individuals’ right to free speech is not absolute and may be limited if it interferes with the rights of others, and “there is nothing in the First Amendment that gives a person employed to teach the Constitutional right to teach beyond the scope of the established curriculum.” Mercer v. Michigan State Bd. of Education, 379 F. Supp. 580, 586 (E.D. Mich. 1974).

Ergo, the right to free speech of professors must be balanced “against his student’s right to be free of religious influence or indoctrination in the classroom.” Roberts v. Madigan, 702 F. Supp. 1505 (D. Colo. 1989).

Discussion of this balancing in Brazil is far behind that in the United States, and backlash on ENA lacks adequate grounds. In democratic societies, it is necessary to have a serious conversation about what is appropriate for teachers to do in the classroom; for education in the truest sense of the word, teachers cannot not be biased disseminators of an inflexible knowledge. The learning process does not operate as an authoritative monologue or top-down teaching, but as an ongoing process of innovative, democratic, and dialectical thinking. Thus, students should not receive and mindlessly repeat biased information; rather they should be critical thinkers, autonomous learners, and ultimately producers of their own novel ideas based on their individual experiences and knowledge.