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The Rutherford Institute, which fights on behalf of civil and religious rights, has dispatched a letter to a Texas school district challenging officials’ decision to include a “non-disparagement” clause in teacher contracts.
That provision requires that teachers agree to “not disparage, criticize, or defame the district, and its employees or officials, to the media.”
However, that provision likely violates the Constitution in at least two ways, the legal team explained in a letter to the trustees and superintendent of the Carroll Independent School District.
“The courts would likely find such a restriction on speech by a public school to be in violation of the First Amendment. Because the non-disparagement clause only prohibits criticism of the district, its officials, and employees – but does not prohibit employees from praising or commending the district and its officials – it would likely be considered impermissible viewpoint discrimination which is prohibited by the First Amendment,” the letter informed the district.
As public bodies entrusted with the care and education of America’s children, schools should be free speech forums that encourage critical thinking skills,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Forcing teachers to muzzle their concerns about the government’s policies or actions sends a chilling message to students that there is no room for transparency and accountability in government.”
“In 2021, the Texas legislature enacted House Bill 3979, commonly referred to as Texas’ ‘critical race theory law,’ which requires teachers who choose to discuss ‘controversial issues of public policy or social affairs’ in the classroom to strive to present multiple perspectives. During a training session, an administrator at the Carroll Independent School District suggested that if teachers have a book on the Holocaust, they should also provide a book from an opposing perspective. The suggestion dismayed teachers, spurring them to speak out publicly on the issue and resulting in significant media attention and criticism of the school district for its interpretation of House Bill 3979,” The institute explained, “
The new clause started appearing in contract paperwork just months later.
“The clause prohibits criticism of the district, its officials, and employees to the media but does not prohibit employees from praising or commending the district and its officials.”
The institute’s legal analysis warns the district “muzzling teachers in order to avoid bad press is unconstitutional. Whether the individual is a teacher, parent, student or member of the community, the right to publicly criticize a government body is firmly grounded in the First Amendment.”
The institute said, “public school teachers…cannot ‘constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.’”
The letter noted, “It appears that the Carroll Independent School District is seeking to avoid discomfort and unpleasantness by censoring critical viewpoints through its non-disparagement clause. The non-disparagement clause also seeks to hide concerns and prevent the public from learning about them. However, district employees should be free to widely inform the public, and especially parents, through the media about concerning issues particularly involving how their children are being treated and educated so that the public can express their desires to their elected officials on the Board and make informed decisions when voting for trustees to represent them.”
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