High school teacher has no First Amendment right to choose in-class materials, Sixth Circuit holds  

A Sixth Circuit Court of Appeals panel unanimously held that First Amendment protection does not extend to the in-class curricular speech of primary and secondary public school teachers made pursuant to their official duties.

In Evans-Marshall v. Board of Education of the Tripp City Exempted Village School District, 2010 WL 4117286 (6th Cir. 2010), a high school English teacher, Shelley Evans-Marshall, assigned groups of students to read and lead a class debate on a book chosen from the American Library Association's "100 Most Frequently Challenged Books" list.

After several parents complained to the school board of Evans-Marshall's teaching methods, the principal instructed her that she needed to discuss with department chairs before using any material in class that contained "violence, sexual themes, profanity, suicide, drugs and alcohol." Evans-Marshall responded by saying that each book chosen had been purchased and approved by the school board.

After a series of negative performance evaluations, Evans-Marshall eventually was non-renewed. She subsequently sued the board, the principal, and the superintendent, claiming she was retaliated against for exercising her free speech rights. Specifically, Evans-Marshall alleged she had a First Amendment right "to select books and methods of instruction for use in the classroom without interference from public officials."

The district court granted the defendants' summary judgment motion, holding that the plaintiff did not show her curricular choices were a motivating factor in the board's decision not to renew her contract.

The Sixth Circuit affirmed the non-renewal, but found the plaintiff did produce sufficient evidence to show she was terminated for her curricular choices. However, the court held the First Amendment did not extend to Evans-Marshall's actions because they were made pursuant to her official duties as a teacher.

The court noted that, in order to state a valid First Amendment retaliation claim, a public employee must show: (1) the speech involves a matter of public concern; (2) her interests, as a citizen, in commenting on matters of public concern outweigh "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees"; and (3) the speech was not made pursuant to her official duties. Citing, respectively, Pickering v. Board of Education, 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983); and Garcetti v. Caballos, 547 U.S. 410 (2006).

The court acknowledged that Evan-Marshall's speech was a matter of public concern. It also found that her interests in selecting in-class materials outweighed, "the school's near-zero interest in disciplining her for teaching a book it had purchased."

However, the court held the plaintiff could not satisfy the "pursuant to" requirement in Garcetti. In making its holding, the court noted that, when government employees speak pursuant to their official duties, "they are not speaking as citizens for First Amendment purposes." Citing Garcetti, 547 U.S. at 422. The court further noted that a public employer, just like a private employer, retains "control over what the employer itself has commissioned or created." Id.

In addition, the court mentioned a similar decision reached by the Seventh Circuit in Mayer v. Monroe County Community School Corp., 474 F.3d 477 (7th Cir. 2007). In that case, a first-year probationary teacher alleged she was non-renewed because she took a political stance during a current events section of her class. In response to a student's question, she answered that she had participated in a political demonstration against the Iraq War.

The teacher argued that the principle of "academic freedom" supersedes the Supreme Court decision in Garcetti. The Seventh Circuit disagreed, holding that academic freedom is limited in the elementary and secondary school setting. The court also noted the board, which is charged by law with curriculum development, may require the obedience of subordinate employees, including subordinate teachers.