New York Public Personnel Law: An educator does not have a First Amendment right to determine the method of instruction and the books to be used in his or her classroom

October 25, 2010

An educator does not have a First Amendment right to determine the method of instruction and the books to be used in his or her classroom

An educator does not have a First Amendment right to determine the method of instruction and the books to be used in his or her classroom
Evans-Marshall v Tipp City Exempted Village School District, CA Sixth Circuit, 09-3775

Shelly Evans-Marshall, a public high school teacher claimed that she had a First (and 14th) Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials” and that the school district had retaliated against her when she attempted to exercise those rights.

The Tipp City Board of Education disagreed, contending that Evans-Marshall’s right to free speech protected by the First Amendment does not extend to her in-class curricular speech.*

The U.S. Circuit Court of Appeals, Sixth Circuit, agreed with the school district's position, holding held that the use the right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made “pursuant to” their official duties, citing Garcetti v. Ceballos, 547 U.S. 410.

The Circuit Court said that this free-speech-retaliation case implicates “two competing intuitions:”

1. Does a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against?

2. Doesn’t a school board have the final say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.

In this instance, said the court, “a First Amendment claimant must satisfy three tests: the test announced in Connick 'is the matter of public concern;' the Pickering 'balancing' requirement and the Garcetti 'pursuant to” requirement.'” Although Evans-Marshall satisfied the requirements set out in the first two tests, the Circuit Court said that had not met the third, Garcetti, requirement.

* Ohio law provides that “[t]he board of education of each city . . . shall prescribe a curriculum.” O.R.C. § 3313.60(A), thereby giving elected officials — the school board — rather than teachers, a school principal or a school superintendent, responsibility for the curriculum.

The decision is posted on the Internet at:
http://www.ca6.uscourts.gov/opinions.pdf/10a0334p-06.pdf
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