The Sixth Circuit Court of Appeals in Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, held that an Ohio public school teacher does not have a Constitutional right to select books and methods of instruction for use in her classroom without interference from the school board.
The Tipp City School Board hired Shelley Evans-Marshall to teach English and supervise the high school’s literary magazine. Evans-Marshall distributed to her class a list compiled by the American Library Association of the “One Hundred Most Frequently Challenged Books.” She asked her students to pick a book from the list, to investigate the reasons why the book was challenged, and to lead an in-class debate about the book.
At an ensuing school board meeting, approximately 25 parents complained about the curricular choices in the school, including Evans-Marshall’s challenged-book assignment. The next day, Evans-Marshall’s principal called a meeting of the English Department and told Evans-Marshall that she was “on the hot seat.”
Nearly 100 parents and the local news media attended the school board’s next meeting. Again, parents raised particular objections to the materials in Evans-Marshall’s classroom and her teaching methods. Furthermore, a group of parents presented the school board with a 500-signature petition calling for “decency and excellence” in the classroom.
In a subsequent performance evaluation, the building principal critiqued Evans-Marshall's use of materials that "pushed the limits of a community standards.” Evans-Marshall filed a written objection to the performance evaluation and a grievance with the school district. Thereafter, the school board voted unanimously to non-renew Evans-Marshall’s teaching contract. The written reasons for the non renewal included “problems with communication and teamwork.”
In March of 2003, Evans-Marshall filed a civil rights action against the school board, building principal and superintendent. Therein, she claimed the school board retaliated against her “curricular and pedagogical choices”, interfering with her First Amendment right to “select books and methods of instruction for use in the classroom without interference from public officials.”
On appeal to the Sixth Circuit, the court noted that in free speech retaliation cases, it asks three questions:
- Was the individual involved in “constitutionally protected” activity - here activity protected by the free speech clause of the First Amendment?
- Would the employer’s conduct discourage individuals of “ordinary firmness” from continuing to do what they are doing?
- Was the employee’s exercise of constitutionally protected rights “a motivating factor” behind the employer’s conduct?
The court must find in the affirmative on each question for a claimant to prevail on a free-speech retaliation claim.
The Sixth Circuit held that the Evans-Marshall’s curricular speech discussed topics of “public concern” to the community. Furthermore, the Court held that Evans-Marshall’s interest as a citizen to comment upon matters of public concern outweighed the school board’s interest in enforcing curricular standards. The court noted that the school board's position on this matter was compromised by the fact that it had purchased the books at issue and had made them available to teachers as optional text.
The Sixth Circuit noted that before any parents complained about her reading assignments and classroom discussions, Evans-Marshall had never received a negative performance review. Shortly thereafter, she not only received a negative performance review, but her employment contract was "terminated". Thus, the court found that Evans-Marshall had successfully proven that her teaching choices caused the school board to non-renew her contract.
However, the court held that even if Evans-Marshall's discipline was prompted by her curricular and pedagogical choices, the First Amendment does not insulate her from employer discipline. The court reasoned that when a teacher teaches, “the school system does not regulate [that] speech as much as it hires that speech. Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary.” Therefore, if the school board hires that speech, it can surely "regulate the content of what is or is not expressed."
The court then noted that ORC 3313.60 vest the board of education for an exempted village school district with the authority to prescribe a curriculum. The court found this statute to be an accountability measure that ensures the citizens of a community have a say over their children's education by giving them control over membership on the board.
Therefore, the Sixth Circuit held that the school board had the authority to non-renew the contract of Evan-Marshall when her "pedagogical attitude and teaching methods do not conform to institutional standards."
This case helps to clarify the United States Supreme Court's 2006 decision in Garcetti v. Ceballos, whereby the Court held that traditional concepts of academic freedom might require the development of some kind of exception for classroom instruction. However, the Garcetti Court declined to address what those exceptions may be. The Evans-Marshall case supports the authority of an Ohio School Board to oversee a teacher's pedagogical and curricular choices.
School boards with a collective bargaining agreement that contains an academic freedom clause may wish to review this clause to ensure it is consistent with the rulings and reasoning found in Evans-Marshall.
Please feel free to contact an attorney in the firm's Education Law Practice Group should you have any questions concerning employee Free Speech rights and Academic Freedom.