STRIKING
THE BALANCE:
PUBLIC SCHOOL
TEACHERS AND FREEDOM OF EXPRESSION
by Sean C. Doyle
The freedom of expression of public school teachers, whether inside or outside the classroom, is not absolute. As the Supreme Court of Canada recognized in its 1996 Malcolm Ross decision, teachers are the "medium" of the educational message, and their conduct must be evaluated not on the basis of where it occurs but by the impact of that message. In Canada, the leading cases on teachers' freedom of expression have arisen in the context of hate speech.
In the 1983 Keegra decision, for instance, a board of reference upheld the dismissal of a high school teacher who had taught his class anti-Semitic theories and then required the students to accept those theories as historical facts. Similarly, in the Malcolm Ross case, a teacher was removed from the classroom because his out-of-class anti-Semitic speech had poisoned the educational environment. Although there was no evidence that the teacher has attempted to indoctrinate his students, his racist views were well known within the community. The court was satisfied that Jewish students, having knowledge of his views, might consider themselves the subject of suspicion, distrust and isolation, and a reasonable inference could be drawn that the teacher has compromised his impartiality.
In the latest case, the 2002 Peel District School Board decision, a board of arbitration upheld the termination of a teacher because his out-of-class racist activities had undermined the board's values and commitment to multiculturalism. In that case, the teacher had already been warned to cease his participation in white supremacist and anti-Semitic organizations and had been transferred from a high school to an adult education teaching position. However, the teacher continued his involvement with these groups. He gave a presentation at a white supremacist conference in Illinois at which David Duke, the former grand wizard of the Ku Klux Klan, also spoke, and he organized and addressed an anti-Semitic conference in Vancouver.
As in the Malcolm Ross case, there was no evidence that the teacher had expressed racist views in the classroom, and although his most recent activities took place away from the community in which he taught, they nevertheless attracted considerable media attention. Interestingly, the arbitrator never rejected the argument that since the teacher was in the adult education program, his influence on his students was minimal. The evidence showed that students in adult education programs are likely to be more culturally diverse than students in regular classes, and they may be more sensitive to the influence of persons in authority who hold discriminatory views.
As the above cases demonstrate, restrictions upon teachers' freedom of expression may be upheld if the message conveyed by the teacher undermines the very values and beliefs which the school system seeks to instill. Until recently, however, there were no Canadian cases considering whether a teacher's academic freedom is protected by the Canadian Charter of Rights and Freedoms. In Morin vs. Board of Trustees, a decision released on May 1, 2002, the Prince Edward Island Court of Appeal examined the extent of a teacher's freedom of expression in the classroom, and the manner in which it could be restricted.
In that case, a teacher showed his Grade 9 language arts class a documentary entitled Thy Kingdom Come, Thy Will Be Done, which examines the fundamentalist approach to religion in the United States. The film was intended as a catalyst to encourage critical thinking skills and to assist students in completing a project on "What Religion Means to Different People." Several of the students walked out in protest during the viewing, and between 10 and 15 parents later objected to their children having been shown the film. As a result, the teacher was prohibited from showing the film again and was directed not to proceed with the assignment.
The board ultimately determined that although the assignment was appropriate as part of the authorized language arts program, it was lacking in preparation and evaluation. The teacher was directed not to proceed with the assignment until it had been altered to the satisfaction of the principal and the superintendent of programs. By the time the board reviewed the assignment, however, the teacher had been placed on a paid leave of absence, and he was not offered another teaching position. The teacher then sued the board, alleging, among other things, that it had violated his right to freedom of expression.
The trial judge rejected the teacher's claim, noting that the purpose of the board's decision was not to limit freedom of expression but to create an effective learning environment for the students. The judge also reasoned that administrators must have broad discretion to regulate what is taught as part of the curriculum, and principals must be free to make reasonable decisions without fear of lawsuits.
The teacher appealed, and a majority of the Court of Appeal overturned the decision and rejected the reasoning of the trial judge. Applying earlier Supreme Court of Canada jurisprudence, the court considered whether the activity of the teacher constituted "expression" within the meaning of the Charter, and, if so, whether the purpose or effect of the board's actions restricted that expression. According to the court, both the film itself and the related assignment attempted to convey meaning and were therefore entitled to Charter protection. The court then found that the board had restricted the teacher's freedom of expression, not only by preventing him from showing the film or continuing with the assignment but by ordering that the assignment could proceed only if it was modified to the satisfaction of the board.
At both the trial and the appeal, the board argued that teachers do not enjoy the constitutionally protected freedom of expression in the classroom, because the control of schools rests with principals, who may make decisions which restrict that expression. The court rejected this submission, stating that so long as an activity conveys meaning, the fact that restrictions may be imposed upon it does not preclude it from Charter protection. Boards may indeed restrict teachers' freedom of expression, the court reasoned, but such restrictions must be justifiable as reasonable limits in accordance with section 1 of the Charter.
In this case, the court did not consider whether the restrictions upon the teacher's expression were reasonable, because the board made no attempt to justify them. However, as previous cases have established, in order to justify a restriction on a Charter right, a court or a board of arbitration must be satisfied that there is a sufficiently important objective that justifies the limitation of right; that there is a rational connection between the restriction and the objective; that the restriction is the least drastic means by which the objective can be achieved; and that the effects of the restriction are proportionate to the objective.
Although the Morin decision concerned a teacher's freedom of expression, its reasoning may also be applicable to students. As a result, boards may be required to justify, in accordance with section 1 of the Charter, any action which restricts expression. Yet even the court in Morin recognized that schools require rules and regulations respecting curriculum and programming, and it is likely that only those restrictions upon expression which are unreasonable, excessive or arbitrary will be successfully challenged. The Morin decision does not, however, diminish the obligation on boards to take action against teachers whose expression, whether inside or outside the classroom, is discriminatory or otherwise contributes to a poisoned learning environment.
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