Education Week Blog Article: No Teacher Speech Rights on Curriculum Court Decides

Still without a computer! Borrowing my husband's MacBook again.

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Here's an interesting article I read yesterday at The School Law Blog (Education Week).

Court: No Teacher Speech Rights on Curriculum

By Mark Walsh on October 21, 2010

http://blogs.edweek.org/edweek/school_law/2010/10/court_no_free_speech_rights_fo.html

Excerpt:

Teachers have no First Amendment free-speech protection for curricular decisions they make in the classroom, a federal appeals court ruled on Thursday.

"Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom," the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, said in its opinion.

The decision came in the case of an Ohio teacher whose contract was not renewed in 2002 after community controversy over reading selections she assigned to her high school English classes. These included Siddhartha , by Herman Hesse, and a unit on book censorship in which the teacher allowed students to pick books from a list of frequently challenged works, and some students chose Heather Has Two Mommies, by Leslea Newman.

A group of 500 parents petitioned the school board against the teacher, Shelley Evans-Marshall, calling for "decency and excellence" in the classroom. The teacher also had various run-ins with her principal. Despite positive performance reviews before the controversy, the principal's evaluations afterwards criticized Evans-Marshall's attitude and demeanor and her "use of material that is pushing the limits of community standards." The school board in March 2002 decided not to renew her contract, citing "problems with communications and teamwork."

Evans-Marshall sued the Tipp City, Ohio, school district and various officials in 2003, alleging that her termination violated her First Amendment free-speech rights. In 2005, she won a ruling from the 6th Circuit that allowed her case to survive a motion to dismiss by the defendants. The court said at that time that it appeared that Evans-Marshall's termination was "due to a public outcry engendered by the assignment of protected material that had been approved by the board." (Education Week reported on that decision here.)

The suit proceeded to discovery until the school district defendants sought summary judgment last year. A federal district court granted the defendants' motion on the grounds that Evans-Marshall could not prove a link between the community outcry and the school board's decision not to renew her.

In its Oct. 21 decision in Evans-Marshall v. Board of Education of the Tipp City Exempted Village School District, a 6th Circuit panel ruled unanimously for the school district and other defendants, but on other grounds. (The appeals panel said the teacher had clearly shown that "her teaching choices caused the school board to fire her.")

But while Evans-Marshall's case satisfied two earlier Supreme Court standards on public-employee speech (Pickering and Connick), she could not survive the court's most recent decision in this area: Garcetti v. Ceballos. In Garcetti, decided in 2006, the high court held that public employees do not have First Amendment protection for speech "pursuant to" their official duties.