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Court: No Teacher Speech Rights on Curriculum

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.

"In the light cast by Garcetti, it is clear that the First Amendment does not generally insulate Evans-Marshall from employer discipline, even discipline prompted by her curricular and pedagogical choices and even if it otherwise appears (at least on summary judgment) that the school administrators treated her shabbily," said the 6th Circuit opinion by Judge Jeffrey S. Sutton.

"When a teacher teaches, the school system does not regulate that speech as much as it hires that speech," Sutton wrote, borrowing language from a 7th Circuit decision in a similar case. "Expression is a teacher's stock in trade, the commodity she sells to her employer in exchange for a salary. And if it is the school board that hires that speech, it can surely regulate the content of what is or is not expressed, what is expressed in other words on its behalf."

Sutton questioned how a school system could operate if all teachers had First Amendment rights to make their own curricular decisions.

"Evans-Marshall may wish to teach Siddhartha in the first unit of the school year in a certain way, but the chair of the English department may wish to use the limited time in a school year to teach A Tale of Two Cities at that stage of the year," Sutton wrote. "When educators disagree over what should be assigned, as is surely bound to happen if each of them has a First Amendment right to influence the curriculum, whose free-speech rights win? ... Placing the First Amendment's stamp of approval on these kinds of debates not only would demand permanent judicial intervention in the conduct of governmental operations, but it also would transform run-of-the-mine curricular disputes into constitutional stalemates."

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