THE CONSTITUTION VERSUS THE SUPERINTENDENT OF EDUCATION

The Ombudsman thanks me for the case of the Teachers of Zabrze.

Sometimes a lawyer acts in defence of people whose acts he would never approve or condone. We are then defending not so much the act the perpetrator has committed, but the right of each of us to a fair and just trial. Sometimes, however, we are assured that we are on the “good” side, that our assistance is rendered to people with whom we cannot personally sympathise, but whom we also – most often secretly – admire.

This was also the case in 2016. My Colleagues and I were approached for help by a group of female teachers of one of the schools in Zabrze. It was the time of the “Black Protest” – a mass protest against the bill supported by the parliamentary majority to amend the law on the permissibility of abortion. The teachers were not a homogeneous group: some of them were in favour of liberalising the law, others were in favour of retaining the existing regulations. The teachers had one thing in common: unable to participate in the mass demonstrations taking place in Katowice’s Market Square at the time (there are no leave on request in education), they symbolically took selfies in black clothes, during a break, in the school corridor. After which they posted the photograph – as an expression of support for the protesters – on their own Facebook profiles. The entire event lasted for only a few minutes.

It sounds like a bad joke, but the incident alerted the Silesian school superintendent. Disciplinary proceedings were launched against the teachers, alleging that they had embezzled the dignity of the teaching profession. The clients made it clear. “No matter what consequences we may face, we are not going to retreat, minimise our or pretend ignorance. We are citizens, we have the right to manifest our beliefs, we have done no harm to anyone, we have done nothing wrong”. Such an attitude on the part of the clients was respectful, but it also required particular care in presenting the legal status quo of the case. After all, the body deciding on the validity of the allegation were committees made up of teachers. With all due respect for the members of the committee and strong belief that they were independent, we had to be aware that they were not professional lawyers and that they might have quite a problem with making a correct assessment of whether our clients’ behaviour contravened the law.

During the committee meeting we did not argue about the facts. The clients acknowledged the prosecutor’s findings as to the course of the incident. We placed emphasis on presenting the view that the defendants had every right to act as they did, without violating the ethical principles of a Polish teacher. In our written responses to the motions for punishment, we have shown that the regulations of the Polish Constitution and convention law give each citizen the right to publicly express his or her views. A teacher-educator cannot be a timid official afraid to speak out on public issues. Restrictions on the freedom of expression can only result from other norms of statutory rank, insofar as they do not interfere with the essence of this freedom.

We have considered, for example, the prohibition of electoral canvassing in schools, the prohibition of praising totalitarian movements and ideas, the impermissibility of using official dependence or the subordination of pupils to a teacher in order to promote one’s own beliefs in a pushy manner, the manifestation of beliefs at the expense of disregarding professional duties, to be permissible statutory restrictions.
However, as was undisputed, the factual basis for these restrictions did not materialise in the cases under consideration. These short “lectures” on the nature of constitutional rights and freedoms could not be met with a convincing retort from the disciplinary ombudsmen. In all cases, the disciplinary committees issued acquittals, to the satisfaction of the clients and their numerous supporters. It is always worth defending someone’s right to express their views, regardless of whether we share such views ourselves.

Dear clients – you have shown character. We – your advocates – were in turn honoured to receive thanks from you and from the Ombudsman.

It was well worth it. Thank you.