Court Rules that the Right to Free Speech Does not Extend to the In-Class Curricular Speech of Teachers in Primary and Secondary Schools

January 25, 2011

The United States Court of Appeals for the Sixth Circuit, in Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Village Sch. Dist. (October 21, 2010), 624 F.3d 332, ruled that a public high school teacher does not have a First Amendment right to select books and methods of instruction for use in the classroom without interference from public officials.  This decision further supports the notion that boards of education have the ultimate responsibility for what goes on in the classroom and have a legitimate say over what teachers may (or may not) teach in the classroom.

During the 2001-02 school year, Shelley Evans-Marshall, a high school English and creative writing teacher, distributed to her students a list of the “100 Most Frequently Challenged Books” for an assignment to explore government censorship.  The teacher asked groups of students to pick a book from the list and explore the reasons why the book was challenged.  Two groups chose Heather Has Two Mommies by Leslea Newman.  A parent complained and the principal asked the teacher to tell the students to choose a different book, which she did.  After the censorship assignment, the teacher assigned Siddhartha by Herman Heese, a book the school board had bought several years before.

At the October and November board meetings many parents complained about the curricular choices in the schools; they raised particular objections to Evans-Marshall’s classroom and her teaching methods.  The principal warned the teacher that she was “on the hot seat.”  Additional controversy arose when Evans-Marshall planned to distribute student writing samples to students who asked for guidance on assignments—one writing sample gave a first-hand account of a rape, and the other a story about a young boy who murdered a priest and desecrated a church.  Tension grew between the teacher and the principal.  In her evaluation, the principal criticized Evans-Marshall’s attitude and demeanor as well as her “use of material that is pushing the limits of community standards.”  At its March 2002 board meeting, the board voted unanimously not to renew Evans-Marshall’s contract.  Following a formal hearing about the employment decision, the board voted again unanimously not to renew her contract.

Evans-Marshall filed a lawsuit, alleging that the board of education 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.”  While the Court found that the content of her speech related to “matters of concern to the community,” and that her teaching choices caused the school board to fire her, the Court concluded that the First Amendment does not protect primary and secondary school teachers’ in-class curricular speech.

Relying on United States Supreme Court precedent, the Court reiterated the fact that when government employees speak “pursuant to their official duties,” they are not speaking as citizens for First Amendment purposes.  The Court also found it clear that the First Amendment did not insulate the teacher from employer discipline, and that in hiring the teacher, the board of education could certainly regulate the content of what was expressed on its behalf in the classroom.  Citing Ohio law requiring each school board to develop a curriculum, the Court found boards of education solely responsible for curriculum choices—not teachers, principals, or even the superintendent.  Ultimately, the Court found it constitutionally permissible for the board of education to choose to not renew the teacher’s contract based on the teacher’s pedagogical attitude and teaching methods.

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