Evans-Marshall and the canons of the profession

In October 2010, a Sixth Circuit panel decided that a teacher’s curricular and pedagogical choices are not protected by the First Amendment (Evans-Marshall v. Board of Education of the Tipp City Exempted Village School District). The panel cited several precedents, including Garcetti v. Ceballos (2006). There was a lively discussion of the case on this blog last fall; I find it worth revisiting because of the Garcetti question. In particular, Justice Stephen Breyer’s dissenting opinion in Garcetti deserves attention, as it brings up the idea of the “canons of the profession.”

To sum up the Evans-Marshall case: the dispute began in 2001, when a group of angry parents in Tipp City, Ohio, protested teacher Shelley Evans Marshall’s book selections and teaching methods. Marshall had taught Ray Bradbury’s Fahrenheit 451 and followed this with a project on censorship. She divided the students into groups and had each group investigate a book from the American Library Association’s list of “100 Most Challenged Books.” Two groups chose Heather Has Two Mommies by Lesléa Newman; when parents complained, the principal asked Marshall to assign a different book. Marshall complied, explaining to the class that this very experience would serve as source material on censorship.

When this unit was completed, Evans-Marshall assigned Hermann Hesse’s Siddhartha and held class discussions about “spirituality, Buddhism, romantic relationships, personal growth, [and] familial relationships.” Although the school board had purchased the copies of Siddhartha, it had not explicitly included Siddhartha in the curriculum. Parents complained about this and other choices that Evans-Marshall had made; they found the explicit language in Siddhartha offensive. Parents presented the school board with a 500-signature petition calling for “decency and excellence” in the classroom.

In 2002, after an ongoing argument between Evans-Marshall and the principal, the school board voted unanimously not to renew Evans-Marshall’s contract, citing “problems with communication and teamwork.” Evans-Marshall sued the school board, principal, and superintendent, claiming that they had infringed on her First Amendment rights. Eight years of back-and-forth litigation followed. Ultimately, in the fall of 2010, the Sixth Circuit panel decided that First Amendment rights do not apply to the classroom, as the teacher’s classroom speech is hired and may therefore be restricted.

In weighing the arguments on both sides, the panel referred to the United States Supreme Court’s decisions in Connick v. Myers (1983), Pickering v. Board of Education (1968), and Garcetti v. Ceballos (2006). The panel concluded that Evans-Marshall cleared “the first two of these hurdles but not the third.” Garcetti concerns a prosecutor who received a complaint that a police officer’s affidavit used to obtain a search warrant contained falsehoods. He found the complaint valid and conveyed his concerns to his superiors, who acknowledged his point but refused to dismiss the case. The defense subpoenaed him to testify; his superiors transferred him to another office and denied him promotion. He claimed in court that they had retaliated against him, thus violating his First Amendment rights.

The Supreme Court ruled against Garcetti, 5-4, on the grounds that “his expressions were made pursuant to his duties as a calendar deputy” and therefore were not protected. But the vote was clearly a close call; the four dissenting justices wrote three dissents. Justice David Souter expressed concerns about the ramifications of Garcetti for “academic freedom in public colleges and universities”; Justice Breyer noted that the attorney’s speech was governed by “canons of the profession,” which regulate speech independently and which obligate the attorney to speak under certain circumstances. “Where professional and special constitutional obligations are both present,” Breyer wrote, “the need to protect the employee’s speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available.”

The Evans-Marshall decision quotes Souter (thus indicating that it took the dissenting opinions into account) but argues that such academic freedom does not apply to high school teachers. Breyer’s dissent, which the decision does not mention, would have had more bearing on this case. Teachers might not enjoy academic freedom as professors do, but the teaching profession does have its canons, including the tradition of teaching (somewhat) controversial works in English class, at least at the high school level, and encouraging students to challenge untested assumptions. Whether Evans-Marshall went outside these canons is another matter; it is quite possible that she did. But the canons of the teaching profession should be acknowledged if they are to survive at all.

Why are the “canons of the profession” important in teaching? Well, each subject has its parameters, but each subject requires a certain kind of free discussion (the extent and nature of which may vary). You simply cannot teach students to ask good questions or to face the subject boldly unless you are willing to do so yourself.

Do the “canons of the profession” involve making curricular choices? In many districts, yes. These choices will inevitably include upsetting or controversial works, especially at the high school level; how else could a teacher teach Oedipus Rex, Macbeth, Crime and Punishment, or As I Lay Dying? Even where teachers do not select the books, even where the curriculum is set by the school, the “canons of the profession” should make room for works like these. Of course, there’s likely to be some disagreement about what the “canons of the profession” actually are, but the question is worth raising.

So far, I have seen no discussion of Evans-Marshall that brought up Breyer’s dissent in Garcetti or the concept of the “canons of the profession.” I suspect, though, that these considerations will come up in the future; the question of First Amendment rights in the classroom is a tricky one, and Evans-Marshall does not resolve it.

Note: I edited this post after publishing it (but before any comments appeared).


  1. Richard Aubrey says:

    The suggestions in the next to last graf have a problem. They do not piss off the bluenoses. If you do not piss off the bluenoses, you’re not doing your job–and having the fun–of deflowering young minds.
    Your suggestions might work very well. But they do not piss off the bluenoses.
    Keep that in mind for next time.
    I am not a lawyer, but it seems to me that hired speech is subject to restriction.
    Suppose you worked in a call center whose function included mollifying customers….

  2. Michael E. Lopez says:

    This is going to sound hypocritical, but:

    If you work for a district, you do and say what the district tells you to do and say. Period, end of story. You deviate at your own peril. I’m of the mind that this is not a First Amendment issue. The teacher is, of course, free to say whatever s/he wants. What s/he is not free to do is get paid for saying whatever s/he wants. I said pretty much the same last fall in our “lively” discussion.

    Nevertheless, I should make clear something I didn’t really make clear last fall:

    Any group of parents who gets all hot and bothered about Siddhartha really needs to ask themselves if they’re doing anyone any favors at all. What do they think they are “protecting” their kids from? Teenagers are not ten-year-olds. Frankly, they could really use some exposure to sophisticated adult views on sex, violence, drugs, and all terrible, awful stuff that makes up so much of, well… literature.

    All this is to say that parents and communities have a right to stunt their kids’ educations if they want. But they shouldn’t want.

  3. Interesting points. What occurs to me is that none of this comes up until it comes up. That is, there are probably teachers all over the country teaching Siddhartha and comparable works without a murmur. It’s only when someone complains that it becomes an issue at all.

    The problem, then, is that the complaints can be utterly haphazard. They can come from parents who haven’t read the works in question. That’s where it would make sense to have some sort of recognition of the “canons of the profession”–so that the teachers have room to teach their subject within its generally recognized parameters.

    Now, whether these “canons of the profession” are a First Amendment issue or something else, I am not sure. One could argue that a school should articulate what a subject entails. Then, within the parameters of that subject, a teacher should enjoy freedom of speech. That is, a teacher should not be penalized for teaching the subject as it is generally understood and presented by the school (or by outside bodies–for instance, if the teacher is teaching an AP class).

    Richard, you make a good point about bluenoses–but it seems that if parents are going to get upset about Siddhartha, they could just as easily get upset over the works I mentioned. I’m willing to bet that most of them didn’t read Siddhartha in full–they just read one of the vaguely racy passages (of which there are few).

  4. What occurs to me is that none of this comes up until it comes up.

    This is exactly right and true about many things in teaching. Blogging, specifically, comes to mind.

  5. Richard Aubrey says:

    I happen to be leaving Colonial Williamsburg–take a week and bring your arch supports–and am reminded of having gone around with some history teachers on the ‘net some years ago.
    Why, I asked, if the population during the Revo period was divided into three equal parts–rebel, loyalist, waiting to see–did so many more turn out to fight for the rebels? The loyalists could get British money, which had actual value, and British supplies. How come the rebels turned out and the loyalists did not (actually to a much lower extent)?
    After some lame examples, the loyalists were older ?) or Church of England (?), they decided the issue by accusing me of being a “patriot”.
    It wouldn’t have mattered if these clowns were my kids’ history teachers. I educated my kids myself, which is to say, I corrected or amplified various things they heard at school. But they are somebody’s histopry teachers.
    Point is, there are people in the profession, and I have met some of them, my wife being a teacher and my kids having been educated, who really are like that. Who really wouldn’t pick a reading list without calculating the likelihood of pissing off the bluenoses. Who think that getting parental objection is a sign of intellectual superiority. Sidd is going to get less parental objection than Heather has …. So let’s teach Heather.
    Grover Norquist suggesed a companion volume, Heather Has Two Guns, to see how it would be received. You can imagine the difference.
    But, just to be clear, it isn’t about bluenoses. It’s about choosing material for its value in pissing off bluenoses, irrespective of its other merits.
    I queried some teachers about using The Handmaid’s Tale to teach religious tolerance and the danger of religious fundamentalism. After all, that’s fiction and poorly designed–various shortcomings not necessary here–and you have, I said, real examples such as, oh, I don’t know, Afghanistan.