LOS ANGELES – In rejecting the appeal by three former teachers who argued they were banned from working part time after retirement for refusing to stand up and sing the national anthem, the Tokyo High Court unwittingly affirmed that students possess more free speech rights. At least that’s how the ruling will likely be interpreted in Japan.
The ruling stems from the decision by the Tokyo District Court in 2009 involving a suit originally filed by 172 Tokyo public school teachers who claimed they were being punished for refusing to stand and sing the “Kimigayo” anthem at school ceremonies. Although the court acknowledged at the time that the order might “go against the plaintiffs’ freedom of thought and conscience,” it is “rational” to ask them as public servants to engage in uniform activities at school ceremonies.
It’s unclear whether students in public schools in Japan would be required to participate, or whether their free speech rights also expire when they step on school grounds. That distinction is less ambiguous in the United States as a result of several court decisions over the years. Several lessons emerge that have direct relevance to events in Japan.
In 1943 during the height of World War II, the U.S. Supreme Court ruled in West Virginia Board of Education v. Barnette that students cannot be forced to salute the flag and pledge allegiance. That decision surprised many at the time because patriotic fervor was sweeping the land. Then again, in 1969 during the Vietnam War, the U.S. Supreme Court underscored the rights of students in Tinker v. Des Moines Independent Community School District, holding that students did not shed their rights at the schoolhouse gate.
In sharp contrast, courts in the U.S. have held that teachers are essentially hired hands who are expected to toe the line on school policies. What teachers say or do off campus about issues of public importance, however, is protected unless it is libelous. The landmark case in this regard was Pickering v. Board of Education in 1968.
These decisions contain principles that have the potential to affect teachers and students in Japan. That’s because the education ministry is under intense pressure by reformers to have schools turn out more students who can think critically. But if their teachers face disciplinary action, including their dismissal, schools are unlikely to achieve that goal.
The conflict is on display in the adoption of textbooks. The education ministry has imposed strict rules on politically sensitive issues. Teachers who disagree with the views expressed will now have even less leeway in how they design their lessons. How many teachers are willing to put their jobs in jeopardy for the sake of a principle?
Even more chilling will be rules relating to “moral education” that are slated to become part of the curriculum by 2018. Despite its noble-sounding title and intent, moral education is still associated in the minds of many with the Imperial Rescript on Education of 1890, which included blind obedience and self-sacrificing devotion to the nation.
There’s an axiom that “attitudes are caught, not taught.” Long after lectures are forgotten, students in Japan will remember the action taken by their teachers on controversial issues. If so, teachers should not be punished for trying to set an example by their behavior. At a minimum, they deserve the same free speech rights as students.
Walt Gardner taught in the Los Angeles Unified School District for 28 years and was a lecturer in the UCLA Graduate School of Education. He writes the Reality Check blog for Education Week in the U.S.