Stephen J. Elkind and Peter Kauffman (New York University School of Law and New York University School of Law) have posted Gay Talk: Protecting Free Speech for Public School Teachers on SSRN. Here is the abstract:
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In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education context. Due to the harms restricting teachers’ speech about homosexuality can cause students, not to mention community members and the teachers themselves, this paper argues that when the Supreme Court revisits the question it left open in Garcetti, it should create an exception for both university professors and public school teachers.