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
NYPPL

Contracting out work

Contracting out work
Vestal Employees Association, v PERB and the Vestal Central School District, 94 NY2d 409

In Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., (75 NY2d 619), the Court of Appeals ruled that Education Law Section 1950 (4) (bb) permits school districts to substitute participation in a Board of Cooperative Educational Services (BOCES) summer school program for its own program without undertaking collective bargaining with their teachers' unions.

In this case the Court of Appeals considered another portion of the same statute, Education Law Section 1950 (4) (d), and determined that a school district may to subcontract out its printing services to a BOCES without collective bargaining.

The Vestal Central School District subcontracted its printing services to the Broome-Tioga BOCES.

The single District employee affected consented to the transfer and continued to perform printing duties in the same shop using the same machines.

As a result of this change, the individual performed printing services for two school districts instead of one. In addition, upon this transfer, the employee became a member of a new bargaining unit, the BOCES Support Services Association, which negotiated the terms and conditions of his employment.

PERB dismissed the improper practice charge filed by the Vestal Employees Association (30 PERB 3029) ruling that Education Law Section 1950 (4) (d) applied to contracts for shared noninstructional services. PERB commented that the Commissioner of Education's approval of the agreement "necessarily represents the Commissioner's opinion that the printing services in issue in this case fall within the 'other services' " category of Education Law Section 1950 (4) (d).

The Court of Appeals concluded that “Under this legislative scheme, which grants the Commissioner the discretion to approve aidable shared services, which provides broad protections for public employees other than teachers, and which incorporates tight time considerations, the intent is plain and clear that a school district's decision to subcontract printing services to BOCES is not subject to mandatory collective bargaining.”
NYPPL

Court vacates dismissal as too harsh a penalty after considering employee's work record

Court vacates dismissal as too harsh a penalty after considering employee's work record
Currithers v Mazzullo, 258 AD2d 460

School bus driver Steadman Currithers pled guilty to driving while his ability was impaired. He was served with disciplinary charges of misconduct and incompetence based on this conviction. Found guilty, the penalty imposed was dismissal from his position as school bus driver. Currithers appealed and won an annulment of the penalty the district had imposed.

The Appellate Division ruled that although Currithers was guilty as charged, the penalty imposed offended the Pell standard [Pell v Board of Education, 34 NY2d 222].

The court said that while the finding that Currithers was guilty of misconduct is supported by substantial evidence, under all of the circumstances of this case, “including the fact that this incident was an isolated act in an otherwise unblemished record of 15 years employment, and in light of [Currithers] unblemished driving record on and off the job prior to this incident, the penalty of dismissal is shocking to one’s sense of fairness” [the Pell standard]. It remanded the matter to the district with instructions that it “impose a new penalty other than dismissal.”
NYPPL