10/27/2010 01:07 pm ET Updated May 25, 2011

Teachers: Gagged but Accountable?

Have you heard of "performance-based" education policy? That a catch-all term that includes things like firing teachers when they don't improve student test scores. The underlying belief is that what separates good and bad teachers is their ability to do "whatever it takes."

But our courts seem to have not gotten the memo -- teachers who dare to veer from the scripted curriculum are at risk of being fired, and they will not find any protection from the law. Between this lack of legal protection and the pressure to teach to ensure higher scores on standardized tests, it's not a great time to be an innovative teacher.

Seven years ago I wrote an article that was published in the UCLA Law Review. At the time, legal protection of teacher's in-class speech was minimal, and I pointed out that greater protections were needed to further the "diverse-approaches" and "innovation" goals of the charter school movement (then in its early stages), as well as a general interest in a robust exchange of ideas.

Courts, unfortunately, have gone in the other direction. Last week, the Sixth Circuit Court of Appeals (one step below the Supreme Court in the federal hierarchy) issued an opinion that denied any First Amendment speech protections to an Ohio high school English teacher who taught a unit on "banned books" (as well as Siddhartha by Hermann Hesse.

The message to teachers is as clear as it is incongruous: do whatever it takes, just don't exercise too much of your own judgment while you're doing it.

We're left with an interesting question. What is educational innovation? Currently, it seems to be about the federal and state government promoting unproven policies. But what about teachers? Do we want teachers to follow a scripted curriculum, or might there be some value in also asking teachers to be innovative?