The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From a decision by arbitrator Stephen F. Befort in Peterson v. Indep. School. Dist. No. 244, Chisago Lakes handed down Sept. 21 but posted a few weeks ago on Westlaw (see also this article in the Chisago County Press [Jeff Norton]):
Jeremy Peterson is a continuing contract teacher employed by the Chisago Lakes School District. He has worked for the School District for seventeen years and primarily teaches 8th grade social studies and geography classes….
Peterson has received generally positive evaluations of his teaching performance. The only blemish on his prior record is a non-disciplinary letter of directives in 2012 which the School District issued in response to Peterson having shown students a video containing a political advertisement for a presidential candidate. The letter directed Peterson to refrain from expressing his personal political views to students and to demonstrate sound professional judgment in his future teaching activities.
During the 2020-21 school year, one of the last units taught by Peterson was on China. On May 27, 2021 Peterson showed a YouTube video toward the end of class that was titled, "20 Shocking China Facts You Don't Know."
The video presented information about China and its culture in a very negative light. The topics covered included such matters as eating cats, media censorship, and "leftover" women. The video presented information of dubious validity in a sensationalized manner that played on negative stereotypes. Peterson stopped the video after the 18th fact, sparing the students from information about virginity restoration and a dog meat festival. At that point, Peterson simply stated that the video was "interesting" and dismissed the class.
[The video appears to be this one: -EV]
A Chinese-American student in the class found the video to be particularly upsetting. According to the testimony of her parents, the student went to a study hall following the class where she broke down and cried. When the student's father picked her up from school later that day, the student stated that she had a "terrible" day and attributed it to the video about China. Upon arriving home, the student told her mother that the video made her feel ashamed, and she again began to cry. Later that day, the parents watched the video on YouTube and believed it to be inappropriate as a presentation to 8th graders. The student's father testified that it is not clear whether the incident will have any long-term impact on the student.
The student's parents filed a complaint about the video with the School District….
The school board voted to fire Peterson, among other things for "immoral conduct" (on the theory that, among other things, "it is discriminatory, reinforces stereotypes, and is highly sexualized" and "that the video was shown at a time when there was an uptick in hate crimes directed at Asian Americans"):
In summary, by showing the video to students in your classes, you engaged in immoral conduct and conduct unbecoming a teacher which requires your immediate removal from classroom or other duties. Your conduct in showing the video was discriminatory, it promoted prejudice and racism, and it was harmful to students in your class. Your conduct was also divisive and offensive to basic notions of human dignity and equity….
The arbitrator rejected the immoral conduct ground but concluded that a 40-day suspension was warranted for "conduct unbecoming a teacher":
The video inappropriately depicts China and Chinese culture in a slanted, negative manner. Peterson did not check to see if the sensationalized claims made in the video were accurate, and he did not engage in class discussion that could have presented a more balanced viewpoint. At bottom, the video perpetuates racial and ethnic stereotypes that promote Anti-Asian attitudes….
The video presented a sensationalized negative view of Chinese culture that was not fact-checked and which was of little or no educational value. Even more significant, the video perpetuates racial and ethnic stereotypes and promotes Anti-Asian attitudes….
Peterson testified at the arbitration hearing that he does not personally hold anti-China views. Two Education Minnesota witnesses testified that they know Peterson personally and he is not racist. Most telling, the record contains no other evidence of any previous racially tainted comments or actions by Peterson. Accordingly, while Peterson committed a very serious act of misconduct, the School District has not shown that he acted with a malicious racist intent….
The video that Mr. Peterson showed to his class certainly caused short-term distress in the Chinese-American student whose parents filed a complaint. Her father testified that it is unknown whether the incident will have any long-term impact on the student. More generally, Peterson acknowledged at the arbitration hearing that he likely caused harm by showing the video to his classes. Since Peterson played the video to five class section a year for five years running, several hundred students are potentially impacted, although the extent of any actual harm is unknown….
My thinking: The video is shallow, and pretty foolish. How much perspective to seventh-graders get, for instance, from learning that there is a "bra technology studies" degree available at a Chinese university, especially in a context that seems to cast this in a negative light? It also encourages students to view foreign countries as a basis for mockery rather than for serious understanding—and that's especially educationally poor idea when it comes to understanding our foreign adversaries.
This having been said, nothing in the video suggests hostility to Chinese-Americans; the criticisms are of China, and possibly some facets of Chinese culture (such as the openness to the death penalty, which may be a cultural feature and not just a governmental one, or the eating of cats by what is apparently a tiny fraction of the population). The school's theory appears to be that criticizing a foreign country and its government is somehow inherently improper.
What then of a teacher who does want to present class materials that reflect badly on China, including eminently substantive materials? Indeed, say he does "personally hold anti-China views," in the sense of thinking that China is oppressive and dangerous. Perhaps the school or an arbitrator may distinguish that case, on the grounds that those materials were of more than "little … educational value." But I doubt any teacher can have real confidence in that: Indeed, if the worry is that silly criticisms of China are bad because they "perpetuate racial and ethnic stereotypes and promotes Anti-Asian attitudes" (regardless of the teacher's purposes), substantive criticisms seem likely to have even greater effects.
Consider a quote from a school board member (actually, the one who voted not to fire Peterson, but apparently to impose a more limited form of discipline):
The big thing, though, is that we all learn from this and need to be sensitive to all students in the classroom. We need to be kinder and more sympathetic. We want the students in the Chisago Lakes School District to be comfortable…. As a teacher and a school board member, I've always wanted Chisago Lakes students to be welcome and to create a safe environment. I'm confident that will occur and I do believe that Mr. Peterson is ready to get back and work with developing positive relationships with the students in his classes.
I appreciate the value of making students feel comfortable—but that can't lead to a prohibition on criticizing countries with whom the students may feel a connection. And exactly the same quote could of course be used with regard to any statements that portray China negatively, whether those statements are educationally shallow or deep.
This is also part of a broader trend that I've seen where criticisms of China—indeed, in context clearly criticisms of the Chinese government—have led to punishment or demand for punishment on the theory that they may offend some Chinese-Americans or might unintentionally encourage violent attacks on Asian-Americans. Recall Emerson College's conclusions that a student group's "China Kinda Sus" stickers are forbidden "discriminatory conduct"; or the University of San Diego Law School's investigation of a professor for a blog post critical of China; or the attempts to tar the theory that COVID spread from a Wuhan lab leak as "racist," which apparently contributed to social media platforms' banning (for over a year) posts asserting that theory.
This strikes me as quite wrong. Foreign countries, whether China or Israel or Russia or Mexico, are proper subjects for discussion and for criticism. Such commentary shouldn't be stifled simply because some people who feel a link with the country are offended by it, or even because a tiny fraction of the listeners will wrongly use the criticism of the country as an excuse for attacking people who are seen as ethnically linked to it.
I should note that this isn't a First Amendment argument in this context: Courts have generally concluded that K-12 public school teachers have no First Amendment right to dictate the content of their classes, and if a school wants to say "no criticism of China" or even "criticism of China may get you fired, if we concluded it has 'little educational value,'" that wouldn't be unconstitutional. But it would be a bad idea, I think; and it is an especially bad idea when it leaks out of K-12 schooling and into higher education and elsewhere, which we have already seen.