Wednesday, October 27, 2010

First Amendment Provides No Academic Freedom for Public School Teachers--Sixth Circuit

Courthouse News Service has this account of a recent Sixth Circuit U.S. Court of Appeals decision holding that the firing of a Cincinnati-area teacher for assigning controversial book titles: SiddharthaFahrenheit 451, Heather Has Two Mommies, etc.,  in her class, did not contravene the doctrine of "Academic Freedom" under the First Amendment to the U.S. Constitution.  Here's the story:

"An English teacher who lost her job at an Ohio public high school after assigning books that the school board found offensive, including Hermann Hesse's Siddhartha, does not have a First Amendment claim, the 6th Circuit ruled.   The appellate panel in Cincinnati upheld a lower court's ruling for the Tipp City Exempted Village School District, writing that the right to free speech 'does not extend to the in-class speech of teachers in primary and secondary schools made 'pursuant to' their official duties.'

Teacher Shelley Evans-Marshall can speak and write publicly about academic issues outside the classroom, but her curricular choices come under the school board's oversight, Judge Jeffrey Sutton wrote for the three-judge panel.

After receiving positive performance reviews in her first year at Tippecanoe High School, Evans-Marshall came under scrutiny in 2001 when she assigned Ray Bradbury's Fahrenheit 451 and Hesse's Siddhartha to her ninth-grade class.  She asked her class to explore the government censorship theme of  Fahrenheit 451  by doing presentations on books that are frequently censored by schools and libraries.

A parent complained that some students had opted to present Heather Has Two Mommies by Leslea Newman, and the school principal, co-defendant Charles Wray, asked Evans-Marshall to have the students choose a different book.  Parents also objected to the explicit language and sexual themes of  Siddhartha.  About 100 parents attended the October school board meeting to question Evans-Marshall's teaching methods and materials, and they submitted a 500-signature petition calling for 'decency and excellence' in the classroom.

School officials grew more concerned they read writing samples from students in Evans-Marshall's creative writing class, including a first-hand account of a rape and a story about a young boy who murdered a priest and desecrated a church.  In the spring, Wray gave Evans-Marshall a critical performance evaluation, and the school board voted against renewing Evans-Marshall's contract. Evans-Marshall sued the school board, Wray and superintendent John Zigler, claiming they had retaliated against her 'curricular and pedagogical choices' and tried to restrict her First Amendment right 'to select books and methods of instruction for use in the classroom without interference from public officials.'

A federal judge ruled against Evans-Marshall, saying she failed to prove that her teaching methods led to her dismissal.

The federal appeals court affirmed, but on different grounds.  The judges said Evans-Marshall 'has shown that her teaching choices caused the school board to fire her,' but she failed to clear the hurdle in the Supreme Court's 2006 ruling in Garcetti v. Ceballos, which states that when government employees speak 'pursuant to their official duties,' they are 'not speaking as citizens for First Amendment purposes.'

"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,' Sutton wrote, quoting Garcetti.
'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,' the ruling states. '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 appellate court said Evans-Marshall was representing the school as a teacher, and the board is in charge of the school's curriculum under Ohio state law.

'This is an accountability measure, pure and simple, one that ensures the citizens of a community have a say over a matter of considerable importance to many of them - their children's education - by giving them control over membership on the board,' Sutton wrote.

'Every child in Ohio must attend school, providing public school teachers with a captive audience for their in-class speech, and providing a compelling reason for putting curricular choices in the hands of 'someone [they] can vote out of office,' or who is otherwise democratically accountable.'

If Evans-Marshall's speech is protected in the classroom, the judges wrote, the same principle would support the principal's objections to Evans-Marshall's teaching methods.   'Permitting federal courts to distinguish classroom vulgarities from lyrics or to pick sides on how to teach Siddhartha not only is a recipe for disenfranchising the 9,000 or so members of the Tipp City community but also tests judicial competence,' Sutton wrote.

The 6th Circuit also ruled that the 'academic freedom' concept does not protect curricular speech at the high-school level, because the notion was conceived and applied in universities to protect teachers who are also researchers or scholars."
Link to opinion.

Boy things have changed in schools since I was a kid.  Instead of the Tipp City parents going off about the literary choices of the teacher they might be better served looking at what their kids are looking at and posting on Facebook and their cell phones.   Censorship in River City is alive and well. 

The problem for this poor academic will be trying to find future employment--all because she believed in a constitutional ideal.  Sad.


  1. You really think this is because a teacher "believed in a constitutional ideal?" If I were a speechwriter for the President, wouldn't I get fired for writing speeches that criticized White House policies? Would that be protected under the First Amendment? There has to be a line between speaking our mind and our work product, re: Garcetti v. Ceballos. If I were to introduce my personal political/religious ideals into my work product I'd get reprimanded quickly. Papism will do that. :-) If I were to contest and disregard that reprimand, I'd probably get fired.

  2. bullschuck--

    I get your point and the point of the opinion, I disagree. I believe that in this context the First Amendment should have protected this teacher's literary decisions, and that dismissal by the school district should have violated a protected academic freedom. I think there is a distinction to be made between teaching that clearly deviates from the western canon and age appropriate norms which are potentially violative of the district's guidelines. But here, you have a licensed professional teaching a section on censorship and the district censors her! Are you kidding me?

    Why have teachers? Why have schools, just have the district send approved materials home.

    There is a reason why professional teachers are required to have a degree of expertise in their discipline, certification and so forth. Here you have a district caving to reactionary "political correctness."

    Forty years ago, all of these literary works except the lesbian-mommy stuff was on our high school reading lists for "leterary merit."

    This is whacko-right wing BS at work, in my opinion.