Teacher Loses Free-Speech Claim Over Book Choices

     (CN) - 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 "Farenheit 451" and Hesse's "Siddhartha" to her ninth-grade class.
     She asked her class to explore the government censorship theme of "Farenheit 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 after 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. (Parentheses in original.)
     "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." (Parentheses in original.)
     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.