Court rejects teacher’s free-speech claim

Teachers don’t have free-speech rights when it comes to curriculum, a federal appeals court ruled this week.  The case involved a high school English teacher in Tipp City, Ohio who was criticized by parents for assigning Siddhartha by Herman Hesse and for letting ninth graders read Heather Has Two Mommies in a unit on censorship. Then she was fired. From Ed Week’s School Law Blog:

Despite positive performance reviews before the controversy, the principal’s evaluations afterwards criticized (Shelley) 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.”

Judge Jeffrey S. Sutton, who wrote the opinion, said the teacher had been “shabbily” treated, but had no right to set her own curriculum.

“When a teacher teaches, the school system does not regulate that speech as much as it hires that speech,” Sutton wrote, borrowing language from a 7th Circuit decision in a similar case. “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 employer’s needs limit what people can say on the job. You can’t tell off the obnoxious customer and expect to stay employed. Still, I wonder if that censorship unit was part of the school’s curriculum. How do you teach about censorship without reading any controversial books?

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  1. Michael E. Lopez says:

    I’ve read the decision, and pretty much agree with it — the community hires the school district to teach its kids, and curricular decisions get made by the power-structure of the district. If every teacher can do whatever he or she wants, then there’s no district-level accountability to the actual customers: the parents.

    Now, that’s not to say that a district couldn’t have policies in place that grant teachers a certain amount of autonomy. One might very easily envision that teachers are contractually granted the right to determine their own curricula, a right that could have extensive and strenuous procedural safeguards. For instance, a community might allow its board of education to make contracts with teachers that makes their curricular decisions subject only to a unanimous veto by the board of education itself, and only upon recommendation of the teacher’s principal.

    One might even envision a system wherein some teachers are granted that freedom, and others are not. Perhaps it is a right that is earned through performance or education or merit.

    But such a system, however much I might think that it’s a good idea in theory, would still be the community’s choice. It is the community that would have to allow the board to put such regulations in place. And although I can imagine that many people who read about this decision are going to decry the actions of the community (I couldn’t disagree with their decisions more), it is still the community that is, and should be, in control of how they choose to raise their children.


    On another note entirely, I think it’s worth noting that the teacher in question is, if I may wax judgmental for a moment, kind of a twit. She picked at least two students papers — “one a first-hand account of a rape, the other a story about a young boy who murdered a priest and desecrated a church” — as exemplars to share with other students who wanted additional guidance on their writing. That’s just phenomenally bad judgment, and the current trend in getting students to write about their feelings has unfortunately blurred the useful distinction between literature and therapy. (Cf. the current rash of crappy young adult novels about how awful life is. At least the vampire crap doesn’t glorify nihilism.)

    The teacher also apparently has an attitude problem — a very real one. She apparently wanted her final exam to be a combination of “group discussions and self-evaluations.” When the principal criticized her evaluative techniques, she asked the principal to give her a model exam so she could “give (him) back exactly what (he) want(ed).” The Principal very rightly called her a “smart ass”. Then this teacher went running to the Superintendent to complain.

    I’m sure that we’ve all been in this teacher’s shoes, where we think that we’re smarter than the people in charge. Sometimes we’re right. But even if you’re right, that doesn’t justify being obnoxious about it. We expect a certain amount of that obnoxious crap from 20-year olds straight out of college. We don’t expect it out of 30-year olds with Master’s Degrees and ten years of experience. (Evans-Marshall’s CV can be found here: ) If you’re still making cracks like that at 30, you’re a twit.

    And you deserve to be fired.

  2. This strikes me as much more about the district’s “authority” to choose the curriculum rather than about her “right” to free speech. I don’t see a First Amendment issue here at all.

  3. *Siddhartha*? Really? Oh, come on. But, teaching the district curriculum is in my contract — I can’t teach whatever my heart desires. Well, in reality, I do teach whatever my heart desires because I write the curriculum, but I would be pulled up short if I started crossing lines. I do teach Sidd, though. Nobody has found it objectionable (it has a very Christian ending, IMO — Hesse didn’t really know that much about Buddhism — he just liked any spirituality that precluded women).

  4. Cardinal Fang says:

    I don’t see how the court could have ruled otherwise. The teacher was hired by the school board to teach. The employer obviously is in charge of making sure the employee does what she is hired to do.

    That said, I too read the decision and want to point out a couple of factual issues. The teacher assigned Siddhartha *after the school had bought copies of the book and made it available to English teachers to, optionally, teach*.

    Also, the teacher did not exactly assign Heather Has Two Mommies. Instead, on a unit on censorship, she handed out a list of most-censored books and asked groups of students to choose one and lead an in-class discussion on it. Two groups chose Heather Has Two Mommies. Heather Has Two Mommies is a picture book; other books on the list are novels.

    So while I think the school board was within its rights to fire her, I also agree with the court that they acted shabbily. She had no way of knowing, before she made the curricular choices she did, that they would be objectionable.

  5. This is a rather foggy occurrence. I’m not really sure what went on so it’s hard to say if her firing was justified or not.

    Did she teach something she was told my her superiors not to? If so, that would be grounds for dismissal.

    Did she defy any directives from her superiors? If so, there would be grounds for dismissal.

    My teaching contract holds me accountable for teaching the district standards but gives me the authority to choose the materials.

    My district also has a paragraph in the contract on academic freedom. The problem is, it also has language later on that restricts means of communication.

    It seems to be that this wasn’t an issue of freedom of speech.

    It seems that here was a teacher who had a knack for rubbing people the wrong way, which isn’t a crime, but in the real world, it can get you fired.

  6. Cardinal Fang says:

    Having read the decision, I don’t see any allegation that she taught something she was told beforehand not to teach. Nor do I see her having defied any directives from her superiors. She assigned students to pick a book from the censored book list. Some students picked *Heather Has Two Mommies*. After a parent complained, the principal directed her to tell the students to choose another book, and she complied.

    It seems that the teacher was fired for not getting along with the principal. Maybe she’s a smart ***. On the other hand, we only have the principal’s word on that, and he sounds like a jerk.

  7. Diana Senechal says:

    There are several unanswered questions here. Did the actual curriculum specify the literature that would be taught? If not, were teachers supposed to choose from a given list? Did they have to obtain approval of their selections?

    Also, according to the decision, the board had purchased copies of Siddhartha. Why should the teacher be at fault for teaching it, unless the curriculum specifically said to teach something else?

    It is problematic to have individual teachers choosing all the materials themselves. But it is a shame that the board wasn’t willing to defend the teaching of a work it had already selected, and it is unclear what the curriculum contained.

  8. It sounds like the district decided what the curriculum specified after the fact.

  9. While I can’t really comment on the case at hand because there is too little information… I am concerned about the judge’s ruling. It seems to reduce the teaching profession to nothing more than being a mouthpiece for the district. It marginalizes the time we have spent in becoming knowledgeable in our respective fields and our attempts to maintain that expertise.

  10. Michael E. Lopez says:

    Some of the last few comments seem to be looking for some sort of fault on the part of the teacher.

    Evans-Marshall was not, for purposes of this decision, fired because she deviated from the school curriculum. She was fired, the court holds (arguendo), because of her speech — because of her curricular choices. Saying that she was fired for her curricular choices is not the same as saying that her curricular choices were improper, or that they conflicted with or failed to meet the school’s curriculum.

    It can be easier to imagine the distinction if it phrased this way (even if it’s not 100% accurate): the school district fired her because it didn’t LIKE what she was doing/saying and because they could, not because there was anything actually provably wrong with what she was doing/saying. In response, Evans-Marshall sued, claiming First Amendment protections for what she was doing/saying.

    The holding in this appellate decision is essentially this: curricular choices are not subject to First Amendment protection, so a teacher doesn’t have First Amendment protection against being fired for curricular choices.

    And that’s really all the case stands for: no more, no less. It doesn’t say anything at all about any other sorts of protections that the teacher might have. The case does not address the issues such as “Was it fair to fire Evans-Marshall given that she was using a book from the library?”, “Did the school have an express policy against teaching this material”, “Did the school give Evans-Marshall sufficient time to cure her problems”, “Did Evans-Marshall actually do anything wrong in her curricular choices” or “Did Evans-Marshall get sufficient notice of problems with her performance?” I suspect that the answer to all of these questions is “no”, at least in a moral if not legal sense, but I also suspect (and it’s just a suspicion) that notice, fault, or fairness in termination protections didn’t come up in this case because one of the following is true:

    * She was in her first two years at the district she doesn’t have these sorts of protection for her employment, either because she lacks tenure or because she lacks union protections. (i.e., such protections exist for teachers, but she didn’t have them in this case)

    * Ohio doesn’t give these sorts of protections to its teachers anyway. (i.e., such protections do not exist for teachers)

    * These questions were resolved either on 12(b)(6) (demurrer) or on previous summary judgment and the rulings weren’t challenged. (i.e., she had such protections as a teacher, but the district proved that the firing was fair, gave notice, etc.)

    * There’s more to the story that we don’t know that prevented her from advancing these theories. (i.e., she has such protections, but chose not to pursue them because of worries about embarrassment, or because she wanted to keep certain facts out of evidence).

    My money is on choice #1 — mostly because a First Amendment retaliation claim is sort of a longshot and it’s the sort of thing you’d argue if you were an at-will employee with nothing else going for you. But whatever the reason, Diana’s right: the questions relevant to whether Evans-Marshall did anything wrong aren’t answered, but I also think it’s safe to assume that there’s a good reason for that.

  11. Michael, an excellent post.

    Thank you for taking the time to write it.

  12. Diana Senechal says:

    Thanks, Michael–your analysis is very interesting.

    To me it seems the First Amendment claim was a very bad idea–unlikely to win, and a setup for an unfortunate precedent otherwise. (I am not for haphazard curricula where each teacher decides independently what to teach–but the court’s decision could be used to justify arbitrary restrictions on classroom practice.)

    It seems that she could have argued that her choices were in keeping with the curriculum, both in letter (if indeed that was the case) and in spirit. The board did say that it tried to take a middle road on curricular issues, given the wide range of opinions. Perhaps it had outlined its principles in a document. She could have argued that the selection of Siddhartha was fully in keeping with the board’s principles–that it is not nearly as graphic as some parents were making it appear, and worth teaching for its beauty, ideas, and significance. (It was one of my favorite books at age 12–I have trouble understanding the fuss.) There could have been a strong case for the common good–that the teaching of certain controversial works is important for a strong education, and that the board had a history of supporting this principle.

    Such an argument (if she could have made it honestly) would have had more basis and would have been of greater benefit to her, her students, and her colleagues. I am not sure whether it would have held up in court, but it would have been valuable as an argument. The counterarguments would be problematic. For instance, if parent complaints alone justify the removal of a given work from the curriculum, what protection is there for the curriculum at all? If there is no standard for weighing the complaints, then any complainant has more power than a supporter of the curriculum, and this leads to absurdities.

    But as you point out, there are probably reasons why she didn’t attempt any of this.

  13. Cardinal Fang says:

    ” It seems that she could have argued that her choices were in keeping with the curriculum…”

    But that’s not a cause for action. The school board is entitled to decide whether she was teaching the curriculum properly. And they are entitled to decide in a way the court doesn’t agree with, without being second-guessed by the court.

    In other words, the judge could say, “The school board was wrong. She was teaching the curriculum just the way she should have. Too bad those incompetents at the school board didn’t realize what a gem they had. But they had the right to fire her on the basis of their bad judgement. I find for the school board.”

  14. Michael E. Lopez says:

    Or maybe I should just give up commenting on blogs and let Cardinal Fang do it… because he’s way more clear and succinct than I.

    Nice post!

  15. Diana Senechal says:

    Yes, but at least the teacher’s firing and the curricular choices would be separated. The court decision mixes up curricular and other issues in a way that could adversely affect the school curriculum. I am not defending her.

    If she had been able to demonstrate that the selections themselves were in keeping with the curriculum, then the board still could have fired her. But it would be harder pressed to tell teachers they couldn’t teach Siddhartha. At least there would be room for separate discussion of that issue.

    The way it stands now, it’s as though she had claimed a right to teach Siddhartha on the basis of the First Amendment. This seems at least partly wrong, given that the board had purchased copies and thus implicitly participated in the selection. If the teaching of Siddhartha itself (other issues aside) was not a violation of curriculum or of board policy, this should be made clear. If she was fired for other reasons, so be it. But the book selection should be sorted out from the rest.

  16. Cardinal Fang says:

    “The way it stands now, it’s as though she had claimed a right to teach Siddhartha on the basis of the First Amendment. ”

    She DID claim the right to teach Siddhartha under the First Amendment. That was the basis of her claim: that her First Amendment rights were denied. And the court very properly said that she has no such right *under the First Amendment*.

    The court does not opine on matters not brought before it. Perhaps she, or another teacher, might claim breach of contract: she was hired to teach English according to the curriculum supplied, she did, she can’t be fired for doing what she was contracted to do. But she didn’t make that claim, so the court didn’t have to rule on it.

  17. Diana Senechal says:

    I should have said the following:

    “The way it stands now, it’s as though she were invoking First Amendment rights in defense of her decision to teach Siddhartha in particular.”

    It is not altogether clear that she was referring specifically to Siddhartha when she invoked her First Amendment rights. From the decision:

    “In March 2003, Evans-Marshall filed this § 1983 action against the school board,
    Wray and Zigler. She alleged that the school board and other defendants had retaliated against her “curricular and pedagogical choices,” infringing her First Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials.”

    All parties failed to distinguish the issues. She failed to state which curricular and pedagogical decisions were specifically her own (and perhaps she had reasons for keeping this ambiguous). The board failed to clarify what its curriculum actually contained, how much leeway the teachers had, and for what purpose the copies of Siddhartha were intended. The court failed to clarify these matters–though, as you point out, it was not obligated to do so.

  18. Cardinal Fang says:

    Diana, I think you should read the actual decision more closely. The court made it clear that she has no First Amendment rights with respect to curriculum choice:

    “When government employees speak “pursuant to their official duties,” Garcetti teaches that they are “not speaking as citizens for First Amendment purposes.” Any dispute over the board’s motivations, Pickering balancing or the “public concerns” of her speech under Connick is beside the point if, as Evans-Marshall does not dispute, she made her curricular and pedagogical choices in connection with her official duties as a teacher.” [citation omitted]

    She might have alleged some other rights that were violated. But she didn’t. The court does not, and can not, rule on matters not before it. She might have claimed some breach of contract– that she had some implicit or explicit guarantee of freedom to select curricula, and shouldn’t have been fired because she acted within the duties set forth in her (implicit or explicit) contract– but she didn’t, and in any case, such a claim would go to state court, not federal court.

  19. Diana Senechal says:

    Cardinal Fang,

    You are missing my point. I did read the decision carefully. I am not arguing that she has First Amendment rights. I am not even arguing that she was unfairly dismissed. I really don’t know whether she was or not. My concern in this case is for the curriculum. What happened here could happen with many works of literature. A few parents complain, the board washes its hands of the matter, the teacher gets in trouble, and the book (most likely) is removed from the classrooms. The earlier decision made clearer that the actual book selections were not the issue. Why this decision did not, I don’t know, but it is a shame.

  20. The judge’s commentary regarding the teacher’s singular role as a tool of expression for the board seems to minimize any protection whatsoever a teacher may have in their lessons, both curricular and pedagogical.
    As a science teacher I am faced each year by debates that have already been largely ‘settled’ by the scientific community and even the Supreme Court itself. I can easily foresee future conflicts that would pertain to existing curriculum, and wonder if by bringing new science into the classroom I am opening myself up to situations like this.

  21. Cardinal Fang says:

    Diana, I don’t understand what you wish the court had said.

    Clearly, the court does contemplate, and permit, exactly what you fear– that a teacher will teach some work of literature, the community will complain, and then the school board will decide to remove the book from the classroom.

  22. Richard Aubrey says:

    How do you teach censorship without reading censored materials?
    Explain what censorship is. Find it in the dictionary, probably.
    Then start on the next issue.
    Suggesting or requiring the reading of challenged materials is a way of being hip, or edgy or speaking truth to power or some such nonsense. Waste of time, if the question is…what is censorship.
    Challenged materials are, by definition, not censored. Activists use “challenged” in order to punch up the numbers which, if restricted to genuinely “censored”, would be de minimis. Hardly anything’s censored in this country, except for child porn and complaints about Islam. When a library decides not to buy a book, it makes a choice. I don’t think that’s “censorship” because the government isn’t making them do it. If I write a book and librarians don’t purchase it, am I being “censored”? No. I’d be the victim of good judgment.
    You want censorship, read about Mark Steyn and Ezra Levant in Canada’s Human Rights Commissions, and other cases in which some folks are still in jail. Or Geert Wilders.
    Thinking yourself a very fine person for sending kids out to where they might read buttermilk like “Heather” is ludicrous.
    Were I the principal, I’d have a word with teach about wasting time.
    That said, the whole thing about firing is unclear.

  23. Diana Senechal says:

    I wish the court had articulated the issues a little more clearly, even if its decision had been exactly the same. I realize it didn’t have to do so; it was obliged to seek only as much information as it needed to make a decision.

    I wish it had stated clearly (and not just hinted in passing) that the selection of Siddhartha was not a violation of curriculum or of board policy.

    Some of the confusion seems to have been caused by the earlier decision,which states that parents had complained not only about Siddhartha, but also about Fahrehneit 451 and To Kill a Mockingbird.

    From the Edweek article dated November 15, 2005:

    “Under a liberal reading of the complaint, Evans-Marshall was terminated due to a public outcry engendered by the assignment of protected material that had been approved by the board,” U.S. Circuit Judge R. Guy Cole Jr. wrote in the majority opinion. He said the school board’s approval of the teacher’s “termination is an injury that would chill First Amendment expression.”

    Now, that seems incoherent. If indeed the material was protected and approved by the board, then this shouldn’t be a First Amendment issue–or at least part of it shouldn’t be.

  24. Michael E. Lopez says:

    One of the big differences between the 2005 decision ( and the 2010 decision ( is the difference in the burden of proof.

    In the 2005 action, what was on appeal was a 12(b)(6) motion, or what’s commonly called a “demurrer”. In those types of case evaluations, you take everything that the plaintiff says as gospel, and don’t consider anything that the defendant has to say, or any evidence. It’s just a test of whether what the plaintiff is alleging is even a cause of action on its face.

    In the 2010 action, what was on appeal was a motion for summary judgment. Such a motion is brought by one party to either win the case outright (if brought by a plaintiff) or dismiss it outright (if brought by a defendant). But the burden of proof is a little different: any facts that are subject to dispute are resolved in favour of the non-moving party, but facts on which the evidence is essentially uncontroverted are taken into account. This is different than a 12(b)(6) motion, because a 12(b)(6) motion doesn’t take into account facts other than those asserted by the plaintiff. (I’m glossing a bit — Rule 12 has some exceptions, but what I’m saying is pretty much correct.)

    So the 2005 action was just about what Evans-Marshall was alleging. The 2010 motion was about what was actually in evidence. Thus the following remark by the court:

    The alert reader may notice that some of the factual allegations raised in Evans-Marshall’s complaint and addressed in our first decision do not appear here. The distinction between a Civil Rule 12(b)(6) and a Civil Rule 56 appeal explains the difference. As is often the case, discovery will confirm the accuracy of some allegations and disprove others. We recount today only the allegations in the complaint backed up by “the pleadings, the discovery and disclosure materials on file, and any affidavits.”

    Because the school district was the moving party, any disputed facts would have been resolved in Evans-Marshall’s favor. Thus, if there are facts missing that she might have earlier alleged, there was either no evidence whatsoever in support of those facts, or there was uncontroverted evidence in contradiction to those facts.

    Evans-Marshall asserted that To Kill a Mockingbird and Farenheit 451 were part of the reason she was fired, but there must not have been any evidence in support of that assertion. (Or, more likely in my opinion, there was evidence directly contradicting it, such as evidence of other teachers teaching those books without repercussion.)

  25. Cardinal Fang says:

    And the other big difference between the 2005 result and the 2010 result is the 2006 Supreme Court decision Garcetti v. Ceballos: “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

  26. Diana Senechal says:

    Thank you very much for the explanations, Michael and Cardinal Fang.