| Summary: | In this study, the researcher has attempted to ascertain what counts as legitimate restrictions by the employer on the free speech rights of Canadian public school teachers from the perspectives of employment law and constitutional law. In the employment context, school boards may restrict: dishonest speech which undermines trust, uncooperative speech which interferes with effectiveness and efficiency or which is abusive, disloyal speech which unjustifiably harms school boards' legitimate business interests, and disobedient speech which defies employers' authority. In other circumstances, however, employment law recognizes and protects teacher expression in spite of teachers' employment duties. Thus, employers are not allowed to interdict: speech solely because it is idiosyncratic or unconventional, appropriate banter with students, teachers who criticize their employers for illegal and negligent behaviour, and direct and forthright speech in the collective bargaining context. Under employment law, it is still unclear whether teachers can speak out responsibly on matters of public interest without violating their duty of loyalty or whether teachers can exercise some degree of academic freedom without undermining their duty of obedience. In both cases, the researcher argues for increased protection. First, as professionals, teachers possess expertise and a relevant insiders' perspective which have the potential to inform debate on issues of public concern. Second, as educators, teachers are called to prepare our students for citizenship in our democracy by teaching them how to think critically. Under constitutional law, and generally speaking, the Charter is unlikely to alter the employment law analysis and corresponding protection of teachers' expressive rights for three main reasons. First, adjudicators are likely to adopt a reasonableness-based approach to s.1 analysis based on the Supreme Court of Canada's landmark decision in Ross v. New Brunswick School District No. 15 (1996)--the leading judgment on teachers' free speech rights under the Charter. Second, when governments act as both employer and state agent, as opposed to state agent alone, adjudicators will be more inclined to accept employer arguments based on pragmatic and utilitarian considerations, like efficiency and effectiveness, as constituting reasonable grounds for restricting teachers' speech. Third, adjudicators will examine the nature of teacher expression to determine whether it advances the core values underlying s.2(b) expression: pursuit of truth, political participation, and self-fulfillment/autonomy. As a general rule, one can argue that dishonest, uncooperative, disloyal, and disobedient expression are unlikely to implicate core Charter values. Yet, the Charter does have the potential to enhance protection of teachers' free speech rights in two particular areas. First, the Charter may change the analysis when teachers speak out on issues of public concern in a reasonable and controlled way. Second, the Charter may make a difference when teachers attempt to exercise some measure of academic freedom in a professionally responsible manner. In the first scenario, political speech is at stake. In the second scenario, the search for truth (and to a diminished degree political participation self-fulfillment/autonomy) is involved. In both cases, fundamental core Charter values are at issue. Hence, adjudicators may require employers to demonstrate a higher standard of justification, in these specific circumstances, before they accept arguments limiting teachers' freedom of expression. (Abstract shortened by UMI.)
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