Published Online: October 26, 2010
Published in Print: October 27, 2010, as Teacher Speech Rights on Curriculum Rejected

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Teacher Speech Rights on Curriculum Rejected

Appeals Court Rules That Districts Can Determine Instruction

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Teachers have no First Amendment free-speech protection for curricular decisions they make in the classroom, a federal appeals court ruled last week.

“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.

The decision came in the case of an Ohio teacher whose contract was not renewed after community controversy over some reading selections she assigned to her high school English classes. They 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. Some students chose Heather Has Two Mommies, by Lesléa Newman.

A group of 500 parents petitioned the school board against the teacher, Shelley Evans-Marshall. Despite positive performance reviews before the controversy, the principal’s evaluations afterward criticized Ms. 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.”

Ms. 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 its Oct. 21 decision, a 6th Circuit panel ruled unanimously for the defendants. While Ms. Evans-Marshall’s case satisfied two earlier Supreme Court standards on public-employee speech, she could not survive its more recent decision in Garcetti v. Ceballos, in which the high court held in 2006 that public employees do not have First Amendment protection for speech “pursuant to” their official duties.

"When a teacher teaches, the school system does not regulate that speech as much as it hires that speech," the 6th Circuit opinion stated. 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."

Vol. 30, Issue 09, Page 5

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