Teacher lacks First Amendment right on curriculum

Monday, October 25, 2010

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An Ohio high school English teacher has no First Amendment right to make assignments about book-banning or to select particular books for her students, a federal appeals court panel has ruled.

The legal dispute between Shirley Evans-Marshall and the Tipp City Board of Education began in 2001 when Evans-Marshall gave her students at Tippecanoe High School a copy of the American Library Association’s “100 Most Frequently Challenged Books” and asked them to pick a book on the list and explain why it was challenged.

What sounds like an instructive assignment blew up into controversy when parents learned of some of the books on the list, including Heather Has Two Mommies by Leslea Newman and Siddhartha by Hermann Hesse. Parents objected to the gay-lesbian material in Heather Has Two Mommies and the explicit language and sexual themes in Siddhartha.

Complaining about such curricular choices, parents presented a 500-signature petition calling for “decency and excellence” in the classroom. The petition led to a dispute between Evans-Marshall and her principal, Charles Wray, who warned her she was in the “hot seat.”

In March 2002 the school board voted not to renew Evans-Marshall’s contract. A year later she filed a lawsuit, alleging a violation  of her First Amendment rights. She claimed that the school board, Wray and school Superintendent John Zigler retaliated against her for her “curricular and pedagogical choices.”

The school defendants filed a motion to dismiss, contending that Evans-Marshall failed to state a valid claim in her complaint. Both the federal district court in Ohio and the 6th Circuit rejected that argument.

After the process of discovery — in which each side in a lawsuit requests information from the other, takes depositions and engages in other fact-finding — the school defendants filed a motion for summary judgment. In July 2008, U.S. District Judge Walter H. Rice ruled in favor of the school defendants. Rice reasoned that Evans-Marshall failed to show a connection between her teaching methods and the nonrenewal of her contract.

On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed the lower court ruling in favor of the school defendants — but for an entirely different reason. The 6th Circuit said Evans-Marshall must lose her case because a teacher’s choice of classroom assignments and curricular choices is official, job-duty speech not entitled to First Amendment protection under the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos.

In Garcetti, the Supreme Court ruled that public employees have no First Amendment rights with respect to speech “made pursuant to their official job duties.”

Before Garcetti, public employees alleging a First Amendment claim had to show that their speech touched on matters of public importance and outweighed the employer’s interest in an orderly and efficient workplace. Since Garcetti, they also have had to show that they did not engage in official-job duty speech but in protected citizen speech.

The 6th Circuit panel acknowledged that Evans-Marshall’s curricular choices were important and presented issues of public concern. The panel also found that her free-speech rights otherwise would trump the school board’s interests. But “Evans-Marshall … cannot overcome Garcetti,” the panel ruled Oct. 21 in Evans-Marshall v. Board of Education of the Tipp City Exempted Village School District.

To the panel, it did not matter that school administrators “treated her shabbily.” It mattered only that Garcetti controlled the legal analysis. “Teachers are not everyday citizens,” the panel wrote, adding that the school board had the right to control teachers’ curricular choices and in-class speech.

Evans-Marshall had argued that the principle of academic freedom should provide her additional protection outside the reach of Garcetti. The 6th Circuit responded that “the concept of ‘academic freedom’ … does not readily apply to in-class curricular speech at the high school level.”

Paul Secunda, a Marquette law professor and expert on public-employee rights, criticized the 6th Circuit’s decision in his Oct. 22 blog, “Garcetti vs. Public School Teachers: Garcetti Wins and We All Lose.”

“We want our school teachers to engage in robust debate with their students and expand the spectrum of knowledge,” Secunda wrote. “We are all made poorer by the Sixth Circuit's knee-jerk extension of the Garcetti holding to the public school context; it does nothing less than cast a pall of orthodoxy over the classroom and makes an obscene joke of academic freedom in the primary and secondary classroom environment.”

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