LOS ANGELES – In an attempt to prepare young people for citizenship, both Japan and the United States continue to struggle to achieve the proper balance between rights and responsibilities. But surprisingly, students have more freedom in this regard than their teachers.
A precedent was set when three students wore black armbands to express their opposition to the Vietnam War, and were suspended. But in 1969, the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District ruled that students do not shed their First Amendment rights to free speech at the schoolhouse gate.
Since then, the burden has been on public school officials to show that any policy to restrict free speech by students is necessary to avoid substantial interference with school discipline or the rights of others. The result has been a loosening of rules pertaining to student expression that was unthinkable in the decades before.
Now that 18-year-olds have the right to vote, Japan will have to implement a policy that may face the same challenges to the free speech rights of students. Whether the courts there will follow what the U.S. Supreme Court established largely depends on how judges interpret Japan’s Constitution.
Yet ironically, the freedom that teachers have to express their opinions on controversial issues is far more limited. When students invariably ask their teachers what they think, honesty can lead to suspension or worse. In 2003, an elementary school teacher was fired for telling her class that “I honk for peace” on the eve of the Iraq War.
The U.S. Supreme Court without comment denied the teacher a hearing, thereby upholding a lower court’s decision that a teacher’s speech is “the commodity she sells to an employer in exchange for her salary.” It went on to say that “The Constitution does not enable teachers to present personal views to captive audiences against the instructions of elected officials.”
Muzzling teachers, however, denies students the opportunity to hear valid views that can be different from those heard in their homes. High school students today are not nearly as insulated from the news as their peers in past generations. The internet has regularly exposed them to controversial issues. The most indelible learning often takes place when teachers are allowed to use the news as a springboard for class discussion. Teachers refer to such events as “teachable moments.”
Teachers in Japan face a similar peril. In 2009, the Tokyo District Court rejected a lawsuit filed by 172 Tokyo public school teachers who were punished for refusing to stand up in front of the Hinomaru flag and sing the “Kimigayo” anthem at school ceremonies. The presiding judge said that it was rational to demand that teachers who are public servants engage in uniform activities at school ceremonies.
But it’s going to be hard for teachers to stay rigidly neutral when they feel strongly about issues in the news. Consider if teachers should withhold their opinions on whether Japan should abolish the war-renouncing Article 9 of the Constitution to allow for a strong military. The move is likely to be opposed by the same group of teachers who refused to demonstrate their patriotism in 2009.
What protected rights teachers have off campus in both countries, however, is an entirely different story. In 1968, the U.S. Supreme Court held in Pickering v. Board of Education that teachers are “as a class, the members of a community most likely to have informed and definite opinions.” Unless they knowingly and recklessly make false statements, they retain the right to speak out on issues of public importance and may not be dismissed for doing so.
It’s inevitable that a similar lawsuit will be filed in Japan, as teachers begin to test the limits of their rights in a rapidly changing society. School officials who attempt to restrict their free speech rights when they are exercised off campus will likely not prevail. The balance of power is slowly but surely shifting.
Walt Gardner taught in the Los Angeles Unified School District for 28 years.
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