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Court rulings offer guidance, but clarity on teachers’ speech rights remains elusive

A school board “can surely regulate the content of what is or is not expressed” by a teacher in the classroom, a recent appellate decision says.

Four years ago, my older son came home from school toting a letter from the principal saying, in careful and measured words, that there had been an episode in class that day. The school had a very diverse population and began every year with an anti-bullying curriculum that included stories about all kinds of families: kids who lived with one parent, with a grandparent or foster parent or — you can see it coming, can’t you? — with same-sex parents.

At some point, one of the second-graders called the teacher a very ugly name reserved for gay men. The teacher stopped the lesson, told the class the name was inappropriate and then showed them a picture of himself and his partner, and explained that they were in the process of trying to become a family via adoption.

The episode didn’t cause much of a ripple in our house, but it did in the home of the name-caller. Star Tribune columnist Katherine Kersten got ahold of the story and before long I was delivering my baby to a school being picketed. It took a little while, but the district backed the teacher, the classroom reverted to normal and the adults found some other venue for their argument.

Eventually, I wrote about it, too.

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School board ‘has ultimate responsibility’
I thought about the dust-up the other day, and about the ongoing controversy over Anoka-Hennepin Public Schools’ policy of “curricular neutrality” in matters gay and lesbian, when I saw a report that the U.S. Court of Appeals for the Sixth Circuit in Cincinnati handed down a ruling that in matters of curriculum, teachers do not necessarily have free-speech rights: “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 court held.

The decision concerned an Ohio school district’s 2002 decision not to renew teacher Shelley Evans-Marshall’s contract. Evans-Marshall got into hot water after making several assignments to her high-school English classes, including Herman Hesse’s “Siddhartha” and a unit on censorship in which students reported on frequently challenged books; several chose the infamous “Heather Has Two Mommies.”

The nutshell version: A parent complained, the school initially backed the teacher, 500 angry parents packed a school board meeting, and despite the fact that the district had purchased the books in question for use in the classroom, the district crumbled. Citing problems with “communications and teamwork,” it sacked Evans-Marshall. In 2003, she sued, alleging her First Amendment rights had been violated.

The case spent the last seven years bouncing back and forth between the district court, which initially agreed to the district’s request to dismiss it, and the appellate court, which in 2005 refused to throw the case out, noting 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.”

Summary judgment granted to the district
Last week, the appeals court upheld a lower-court ruling granting summary judgment to the district. The reasoning: “When a teacher teaches, the school system does not regulate that speech as much as it hires that speech. 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.”

The sixth circuit opinion leans heavily on a 2006 decision by the U.S. Supreme Court, Garcetti vs. Ceballos. In that decision, the high court made it clear that public employees do have some free-speech rights when they are acting as private citizens and commenting on matters of public interest. They do not necessarily, however, when acting in the scope of their duties.

“Without a significant degree of control over its employees’ words and actions, a government employer would have little chance to provide public services efficiently,” the court held. “Thus, a government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations.”

With the First Amendment, there’s always a balancing act. There are limits on the restrictions public employers can impose: “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”

Otherwise, going to work for the government would mean forfeiting your First Amendment rights, which is clearly unreasonable.

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So what does this mean for a second-grade teacher’s ability to model to his class a good response to a bully? Or Anoka-Hennepin’s efforts to order teachers away from a controversial topic?

Nuances matter
At first blush, it would seem that my son’s teacher’s speech — his decision to talk about a personal issue of relevance to the larger community — would be protected. And that Anoka-Hennepin can in fact tell teachers they may not use a curriculum that seems to take an accepting position on homosexuality, or comment on their own views on the “neutral” curriculum the district may mandate for classroom use.

It’s not entirely clear, though. And so we probably have to assume that the questions — when are teachers acting as private citizens and when can they comment on a matters of public interest — will continue to be a frightening one for teachers, and that each of these ideological conflagrations will have a chilling effect in the classroom.

In part, this is because the nuances of every controversy are different. In the case of my son’s teacher, he was replying to a student’s reaction to a district’s chosen curriculum. In Anoka-Hennepin, there is a great deal of uncertainty over the definition of “curricular speech.” As long as clarity remains elusive, teachers will be fearful. (The Anoka-Hennepin board Tuesday night clarified its bullying and harassment policy, however.)

And even if the issue does eventually reach the U.S. Supreme Court, any decision will still leave individual school districts here and elsewhere with the responsibility for deciding how tightly to circumscribe teacher speech.

There’s one thing that seems certain, however: The topic isn’t going away.