Speak … Out: On the physical boundaries of free speech in education and employment law – by Amir Paz-Fuchs and Tammy Harel Ben Shahar

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What do employment law and education law have in common? That thought has been bothering one of us for some time, perhaps ever since we began to see the JFS and Mandla– both education law cases – being referred to, quite routinely, in employment law cases and scholarship that concerned equality and discrimination. Of course, one could suggest that the courts were doing what courts do – borrowing phrases and principles from other contexts, with little regard to the factual matrix from which those principles arise. However, it did seem that the link between education and employment seemed particularly strong, so courts and academics saw no need to justify the cross-disciplinary reference.

As luck would have it, two cases – one from each field of law – came out recently, both dealing, broadly speaking, with a similar set of facts: a student/worker voiced their opinion outside the school/workplace, and was sanctioned for doing so. However, and this is where the analogy breaks down, and curiously so, whilst the education case was addressed precisely in those terms, and with the focus on ‘person expressing views whilst not on premises’ at the centre of attention, those parameters were completely absent from the Employment Tribunals’ analysis.

Both cases received significant coverage in the general media, so a brief overview should suffice. The employment case is Forstater v CGD Europe. It concerned the ‘gender critical’ beliefs of the claimant, which included remarks over social media to the effect that sex (unlike gender) is immutable, that ‘trans women are male’ and ‘trans men are female’. Unsurprisingly, some of her colleagues, cis and trans, found these comments offensive, and complained. When her consultancy contract was not renewed, she brought proceedings before the Employment Tribunal, claiming that her freedom of speech and belief were curtailed. The ET only briefly mentioned (at [74]) the right to free speech, and focused on the claimants protection to hold her belief without sanction. The ET rejected that claim on the basis that it didn’t satisfy the fifth Grainger criterion, namely that the belief ‘must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’. One of us had the opportunity to review and critique that decision in an earlier blog post.

Recently, the EAT reversed, stating that the fifth Grainger criterion should be interpreted to exclude a very narrow range of beliefs, and repeatedly gave the two examples of Nazism and totalitarianism as qualifying for such exclusion. It continued to conclude (justifiably, we think) that the ET was far too quick to find that the claimant’s beliefs do not fall in the range of beliefs that cannot be recognised as worthy of protection. Crucially, the EAT stressed, the protection of a belief as such does not include the protection of any particular, let alone all, manifestations of a belief. Thus, refusing to address trans people using their preferred pronouns, for example, may, in particular (but not necessarily in all) contexts, constitute harassment.

Surprisingly, however, and this is at the heart of this current post, the EAT followed the earlier path by not even mentioning the right to free speech. In fact, the matter of ‘speech’ is discussed only by way of analysis of ‘hate speech’, and the assessment of the claimant’s posts in that regard (finding that they do not constitute hate speech). Against that background, it is also clear that, unfortunately, the Tribunals did not mention the fact that the speech in question occurred outside the workplace, on the claimant’s private (to the extent that such a thing exists…) social media platforms.

This analysis is striking when compared to the recent US Supreme Court (SC) case Mahanoy v Levi (formally Mahanoy v B.L.). This case is uniquely pleasurable because it allows legal commentators to use profanities with impunity. It concerned a high school cheerleader who wasn’t accepted to the varsity (senior) cheerleader squad or to the softball squad. While visiting a convenience store with a friend, she posted on Snapchat ‘Fuck school, fuck softball, fuck cheer, fuck everything’. A few of her Snapchat-friends took screenshots of the posts, and those made their way to the school, including the coach of the cheerleading squad. As may be expected, there was some discussion over the post over the following two days at school, some teachers took offence, but it went beyond that, and the student was suspended from the cheerleading squad for the following year. The student filed a lawsuit for violation of her right to free speech, protected under the First Amendment to the US Constitution.

The courts have had the opportunity to opine on the importance of student’s free speech. Most famously, in Tinker, which concerned students wearing black arm bands in protest of the Vietnam war, the Court declared that students do not ‘shed their constitutional rights to freedom of speech or expression’ even ‘at the school house gate’. Notwithstanding this fine declaration, the Court in Tinker also recognised that schools have a special interest in regulating speech that ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others’. Therefore, at issue in the instant case, for the first time, was the school interest and power to regulate student speech that takes place outside the school-house gate.

We noted that the difference in the analysis is striking. The reason for this observation is that the decision by the court below (the Third Circuit), and thus the starting point for the SC’s engagement, was that the school’s power disappears when the speech takes place off campus. It is worth reminding, perhaps, that Maya Forstater’s speech also took place on social media, and that there was no indication that her beliefs manifested themselves as speech at the workplace. In fact, there was evidence to the effect that she would always respect an individual’s preference with regards to the use of pronouns, and that she generally believed that it is important to ‘be polite’. Returning to Mahanoy, the SC departed from the Third Circuit’s reasoning by stating that whilst school power is limited when speech takes place outside of campus, it does not disappear. First, it listed a series of contexts in which the student is physically off-campus, but is under the responsibility of the school, and thus should be treated as if on-campus. These include travel to/from school; school trips; speech taking place during remote learning, on school websites or computers, or as part of activities for school credit. Second, even when ‘truly’ off-campus, the school has a strong interest to regulate speech in cases such as serious or severe bullying, harassment targeting particular individuals and threats aimed at teachers or other students.

On campus, the SC explained, the school constantly and justifiably regulates speech. A teacher may require students to be completely silent, to answer a particular question, to present in front of the class and to remain on topic, etc. A very wide range of behaviour may be classified as ‘disruption’ in the classroom. Off campus, however, there are features that diminish the school’s interest in regulating speech. Crucially, and we may now return with an eye towards the employment context, Justice Breyer notes that

…from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.

Moreover, Breyer contributed a phrase to sit alongside Tinker’s ‘school-house gate’ when he explained that it is not only the case that schools should not punish students for unpopular expression, they have an interest in protecting it. ‘America’s public schools’, he explained, ‘are the nurseries of democracy’. The free exchange of ideas, he explained:

…facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.

It is almost impossible (evidently…) to resist a reference to popular culture here: ‘Save the Cheerleader; Save Democracy’.

Of course, one may object to the juxtaposition suggested here: on the one hand there is a SC, education case, placed within the American jurisprudence, with its enduring constitutional focus on free speech. On the other hand, an EAT, employment case, which offers the Equality Act 2010, and not human rights jurisprudence, as its central point of reference. So how can the two be compared? This is a valid objection.

And yet, at a more principled level, education and employment (law) have much in common. First, the school and the workplace are the places in which children and adults, respectively, spend most of their time and therefore affect wellbeing and opportunities to exercise rights and agency. They are also a central component in people’s sense of identity, community and meaning.  

Even in this particular context (and more could be said about other instances, such as dismissal/expulsion; privacy; hiring/admissions; etc) – schools and workplaces both have legitimate interests in discipline, in regulating behaviour,  and in ensuring that students and workers adhere to certain norms of behaviour that is regarded as crucial for the institution’s functioning. Moreover, those interests are recognised through legal mechanisms, and allow for significant control of a student’s/worker’s life. Hugh Collins asked us to imagine a government which announces to its subjects that they must obey all instructions to the letter, always praise it, never criticise; treat senior members of the government with deference and uncritical obedience; and that to ensure compliance, the government may use every means of monitoring and surveillance and monitor behaviour in public spaces and at home. Then he suggests replacing the word ‘employer’ for the word ‘government’ in this Orwellian portrayal, and concludes that it describes, fairly accurately, the modern employment relationship. One could add a few friendly amendments, colouring in some of these principles. This may include the power to impose dress codes, which could impact appearance outside of the workplace (e.g. with respect to long/short hair, tattoos and piercings, and appearance to and from work) which may be different for men and women, seemingly in tension with the Equality Act’s proscription of direct discrimination. Elizabeth Anderson referred to this as ‘Private Government’, with the subheading: How employers rule our lives (and why we don’t talk about it). It doesn’t require much work to translate this exercise to the school context. One is reminded of a seminar in public law in which the tutor asked the students, some of whom were not British, if any of them lived under a totalitarian regime. After a couple raised their hands, he feigned surprise, explaining that he thought all of them came through a school system. Clearly, many schools have a lovely, supportive, and positive environment. And yet, the degree of control over one’s life is remarkable.

And yet, it is important to note a disanalogy between employment and education, which should actually work in favour of more control for schools, when compared to workplaces and managers. One of the central justifications for the school’s power, which is mentioned repeatedly in Mahanoy, is notably absent in the workplace scenario. We refer to the fact that schools stand in loco parentis (in the place of parents), and therefore are to be seen as being empowered by the parents (at least according to Justice Alito, through an implicit or explicit contract) to educate, discipline and sanction children when they are at school. The SC explains that when the children leave the school-house, to the home, that justification is, naturally, less relevant. And yet, in the workplace, where adults are subject to the discipline and control, that justification never existed. And yet, remarkably, the workplace is seen to control individual’s lives far more excessively, not only for acts committed in the physical boundaries of the workplace, but also temporally and spatially outside of it. For example, the aforementioned blogpost referred to a case in which a football fan lost his job after he was caught directing racist abuse at Manchester United players. Much more recently, in a separate (although not a speech, let alone a hate speech) incident, a 24 year-old man lost his job as a real estate agent after accosting Professor Chris Whitty at a park and demanding a selfie.

It may thus be worthwhile for the development of employment law in this realm to take yet another look to the education law jurisprudence (in other realms, the direction of cross-fertilisation may be reversed). In a post-Covid world, where the boundaries between school, work and home are increasingly blurred, it would arguably be even more important to protect the remaining realms of speech and engagement.  

(Suggested citation: ‘A Paz-Fuchs and T Harel Ben Shahar, ‘Speak … Out: On the physical boundaries of free speech in education and employment law’ UK Labour Law Blog, 16 July 2021, available at https://uklabourlawblog.com).