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

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.

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.

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.

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Comments (6)

  1. Submitted by Larry Copes on 10/26/2010 - 09:28 am.

    Tenure is much-maligned as letting lazy teachers “coast to retirement.” But it was intended to play a crucial role in protecting a teacher’s academic freedom against higher-ups who might disagree with what the teacher is saying.

    It was established because the society believed that critical thinkers in academia were so important to the improvement of the community that they should not have to fear retribution.

    This is another example of closed-minded intolerance of diversity. Too many people are too insecure to accept the idea that people who disagree with them might have legitimate points of view.

  2. Submitted by Thomas Swift on 10/26/2010 - 10:01 am.

    I’m all in favor of allowing public school districts to decide what can be put before the impressionable eyes of children…as long as parents have choices in where they send their kids for education.

    Personally, I wouldn’t want my seven year old child being included in discussions regarding a teachers’ alternative sexual life…or for that matter anything having to do with sexuality, but that shouldn’t preclude you from allowing it.

    One more reason unrestricted school vouchers make so much sense.

    School vouchers: Coming soon to a district near you!

  3. Submitted by Brad Robinson on 10/26/2010 - 03:24 pm.

    There is currently an ability to Open Enroll your child into any district you want in the state, so long as that district is willing to accept you. Most will, for financial aid reasons, some won’t because of space or staffing considerations.

    Tenure is very difficult to make, and districts have a very well known teacher before they are willing to commit to placing that person on the seniority schedule after 3 years. Until that time districts freely refuse to continue contracts of teachers with whom they have any questions. Even after tenure, our district has terminated teachers when there is a cause to do so.

  4. Submitted by Ray Schoch on 10/26/2010 - 04:51 pm.

    Ah, clarity…

    It seemed clear to me, after a few years of teaching in a public school, that the First Amendment didn’t really apply. That is, whatever I said in class was NOT going to be “protected speech.” With that in mind, I very rarely offered an opinion in class, and when a controversial topic came up, I bent over backwards (figuratively) to make sure that A) more than one viewpoint was presented; and B) that my own viewpoint was not part of the discussion.

    Frequently, in fact, I played devil’s advocate, defending what has become known as the “libertarian” view on some occasions, or the “liberal” view on other occasions, and sometimes going to some lengths to offer some other viewpoint just to get the little darlings thinking beyond what they’d heard from parents or other adults whose views they might have adopted.

    Having had some personal experience with this sort of controversy, I can say that a hostile school board member can make a teacher’s life very stressful, indeed, and “nuance” is not really part of the equation.When that school board member’s child was sitting in class, there was no question in my own mind that “free speech” was something that did not apply to me if I wanted to continue to work at that school. Since I did – I’d helped design the program, and chaired the faculty council for a number of years – “academic freedom” was a concept that, while interesting, was not something I thought operative at that school, or in that school district. I’ve not seen any evidence, even before this latest court ruling, that it applies in public school classrooms to any significant degree, and especially not to the degree that it might in a university classroom, where, presumably, the sophistication of the student ought to be considerably greater.

    From time to time, there have been occasional teachers in public schools who’ve tried to challenge those limitations, but for the most part, they’ve been slapped down pretty thoroughly, just as happened in this case. Evans-Marshall pushed the edge of the envelope in a way that I might have done very early in my career – mistakenly thinking that there WAS such as thing as “academic freedom” in a public school classroom – but would have advised her not to do (if she’d bothered to ask) after I’d been around long enough to see how these controversies usually played themselves out.

    Among the questions the latest ruling seems to raise – at least it raises them with me – is the degree to which teachers are likely to be, or ought to be, considered “professionals” by the larger society. I spent an awful lot of hours as a teacher in curriculum workshops of one kind or another, and if the court’s ruling is that teachers are no more than “hired speech” for a curriculum set by the district – and it’s hard for me to see another interpretation in the wording provided – then not only was that time in curriculum workshops completely wasted, Horace Mann’s decades of work to establish public schools and “professionalize” teaching as an occupation have largely gone for naught.

    That suggests to me that teacher’s unions are even MORE important, since teachers will now, with the court’s blessing, be treated legally as little more than hired help, assembly-line workers delivering the school board’s message, whatever that might be, and with all the negativity that that implies. It doesn’t bode well for the survival of anything resembling a democratic society – which, by definition, tolerates diverse points of view – if what you learn in school as a child cannot legally be anything that’s not approved by the school board.

    The ruling also makes Mark Twain’s line even more relevant: “In the first place, God made idiots. That was for practice. Then he made school boards.” Not surprisingly, school board members generally don’t find that quote to be the least bit amusing.

    I share Mr. Swift’s distaste for discussions of sexual lifestyles with 2nd Graders, but the case involves high school students whose delusional parents somehow believed that their little darlings had never thought of anything involving sexuality until the evil teacher raised the issue by allowing some students to report on “Heather Has Two Mommies.” More’s the pity. They might have learned something.

  5. Submitted by Richard Schulze on 10/27/2010 - 06:23 am.

    It seems like the voucher programs is great for convincing parents that things are better without really doing anything.

    Governments can’t afford to give every student the money, and that would radically alter the makeup of private schools anyway. A more limited programs with a lottery is rather obviously an unfair use of public money as well. Winning the school lottery isn’t choice, it’s not even luck as it turns out, just some false assurance for a parent.

    If nothing else, school choice research and researchers should attempt to help the public and policy makers better understand the complexity of establishing causation. We allow far too much conflating of correlation with causation both in the studies themselves and especially in the reporting to the broader public.

    http://blogs.edweek.org/edweek/rick_hess_straight_up/2010/04/non-effects

    http://ies.ed.gov/ncee/pubs/20094050/#f1

  6. Submitted by Joel Gingery on 10/27/2010 - 01:41 pm.

    I am struck by the confrontational attitude between students, parents, teachers, administrators and school board members. It reminds me of the acrimony inherent in a business: administrators telling or directing everyone what and how to do what they feel is appropriate.

    This antagonistic situation is characteristic of industrial age, hierarchical thinking; its synonymous with control and authority. Its out of date. We are in the post-industrial age. We need to find new models for education based on modern views of how humans learn and create meaning for themselves.

    This means emphasizing freedom of choice: allowing students and parents to select the schools they want to attend and the curriculum style they prefer; and participatory democracy: letting students, teachers and administrators vote on school policy.

    In this model the school board, administrators, teachers, students and parents work together to make sure that students receive the education they need and want as creative, problem solving individuals trying, as we all are, to pursue happiness.

    Working within a participatory, collaborative democratic school system would remove or greatly decrease the need for school boards and parents to feel they must control teachers because they personally know the teachers and appreciate and respect their abilities and contributions.

    In this model teachers are professionals who assess the needs of the student and mobilize the education system to provide it, much as physicians do for their patients; they are treated as professionals, capable of making independent decisions regarding education. They are subject to applicable laws, but their views are respected.

    In this model school boards’ and administrators’ responsibility is to improve the educational system so it supports the teachers’ ability to deliver the learning experience students and parents want, not micro-manage professional teachers.

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