This Article will examine how (and how far) we have fallen from the legal precedent and educational principles behind Tinker, specifically the increasingly remote standards courts have used to chip away (and sometimes sledgehammer) the speech rights of teachers. To this end, the Article will consider some of the unique and fundamental characteristics associated with a profession that has at its core the mission of encouraging speech, raising questions, and teaching the ability to think—in short, “expressive activities.” It will also look at how the increasingly restrictive standards do not reflect fully the challenges posed by the advent of new technologies that increase (intentionally or not) communications between students and teachers. Finally, the Article will explore the possibility of future courses of action that can help restore teachers to their unique place in First Amendment (and public employee) law while maintaining an appropriate deference to the singular characteristics of our locally based and controlled educational system and appropriate limits on what a teacher may or may not say to students in or out of a classroom.
Wohl, Alexander. “Oiling the Schoolhouse Gate: After Forty Years of Tinkering with Teachers' First Amendment Rights, Time for a New Beginning.” American University Law Review 58, no. 5 (June 2009): 1285-1321.