Boring lessons: defining the limits of a teacher's First Amendment right to speak through the curriculum.

AuthorDonehower, R. Weston

TABLE OF CONTENTS INTRODUCTION I. SPEECH BY A PUBLIC EMPLOYEE IN HER ROLE AS AN EMPLOYEE MAY BE PROTECTED ONLY IF IT IS "INHERENTLY OF PUBLIC CONCERN" A. The Broad Category: Matters of Public Concern B. The Sub-Category: Matters Inherently of Public Concern II. THE SIXTH CIRCUIT'S CONTENT-FOCUSED APPROACH TO CURRICULAR SPEECH SHOULD BE REJECTED III. A NARROW SUB-CATEGORY IS SENSIBLE FROM A POLICY STANDPOINT CONCLUSION INTRODUCTION

Margaret Boring's classes were anything but boring. She taught Advanced Acting at Owen High School in rural Buncombe County, North Carolina, and her classes' performances regularly won regional and state awards. (1) In the fall of 1991, Ms. Boring chose a controversial play, Independence by Lee Blessing, for her students to perform. Independence "powerfully depicts the dynamics within a dysfunctional, single-parent family--a divorced mother and three daughters; one a lesbian, another pregnant with an illegitimate child." (2) Prior to the first performance at the school, Ms. Boring informed the principal of the play's title but not its content. (3) After the presentation of the play, she was transferred to a middle school. (4) Viewing her transfer as a demotion, she filed suit, claiming that the First Amendment protected her decision to teach controversial material. (5)

A federal trial court dismissed her complaint for failure to state a claim. (6) On appeal, a three-judge panel of the Fourth Circuit reversed the trial court, finding that Ms. Boring's choice of the play was speech protected by the First Amendment. (7) Later, a sharply divided Fourth Circuit, sitting en banc, split 7-6 to reverse the panel decision, finding that curricular speech (8) garners no First Amendment protection. (9)

In evaluating Ms. Boring's First Amendment claim, the Fourth Circuit looked to Picketing v. Board of Education (10) and Connick v. Myers, (11) leading First Amendment decisions by the Supreme Court establishing the free speech rights of public employees. Under the test articulated in Pickering and Connick, courts must first determine whether the speech at issue is a matter of public concern. "Matter of public concern" is a term of art. (12) The Court has variously described such matters as those dealing in some way with "the essence of self-government," (13) matters as to which "free and open debate is vital to an informed decision-making by the electorate," (14) matters as to which "debate should be uninhibited, robust, and wide-open," (15) and matters "currently the subject of public attention." (16) While the content of the speech helps determine whether an employee's speech is a matter of public concern, the determination is not made by content alone, but rather "by the content, form, and context of a given statement, as revealed by the whole record." (17)

If public employee speech qualifies as a matter of public concern, it receives provisional First Amendment protection, which means that the government employer must prove that the speech would hinder the efficiency of the workplace, (18) and that its interest in prohibiting the speech outweighs the public employee's interest in speaking. (19) Courts must then balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." (20) On the other hand, if a public employee's expression does not qualify as a matter of public concern, it receives no First Amendment protection. (21) Achieving public concern status does not mean the speech is ultimately protected. For example, in Connick some of the controversial expression was deemed a matter of public concern, but was ultimately unprotected because it failed to pass the second hurdle, the balancing test. (22)

The Supreme Court has never squarely addressed the scope of teachers' free speech rights in the classroom. (23) Lower courts are therefore confused about how much protection to give to curricular speech. Margaret Boring's case illustrates how, in the aftermath of the Supreme Court's ruling in Connick, federal courts have struggled with the question of whether a teacher's curricular speech touches upon a matter of public concern and thereby passes the first hurdle on the road to First Amendment protection. (24) The Fourth Circuit decided to tie provisional protection to the role of the speaker; the court characterized the curricular speech in Boring as not presenting a matter of public concern and as "nothing more than an ordinary employment dispute." (25)

In Kirkland v. Northside Independent School District, (26) the Fifth Circuit held that speech achieves the protected status of a "matter of public concern" only "if the words or conduct are conveyed by the teacher in his role as a citizen and not in his role as an employee of the school district," and that a teacher expressing himself via the curriculum is expressing himself in his role as an employee. (27) As a result, the teacher's decision to teach nonapproved books did not rise to the level of a matter of public concern. (28) Both Boring and Kirkland held that a teacher's curricular speech is an action as an employee, and therefore state abridgement of such speech does not violate the First Amendment. (29)

In Cockrel v. Shelby County School District, (30) however, the Sixth Circuit found that curricular speech could constitute a matter of public concern. In Cockrel, a Kentucky teacher decided to present a series of lessons on industrial hemp to her fifth grade class. The lessons included a visit by a high-profile guest, the actor Woody Harrelson, along with several hemp farmers. (31) The teacher, Ms. Cockrel, was terminated, and when she sued the school board for infringing upon her free speech right, a federal trial court dismissed her legal challenge. (32) On appeal, the Sixth Circuit found that Ms. Cockrel's choice to teach about industrial hemp was a matter of public concern. (33) Unlike the Fourth and Fifth Circuits, the Sixth Circuit de-emphasized the importance of the speaker's role as employee or citizen and interpreted Connick as holding that matters of public concern are all those that can "be fairly considered as relating to any matter of political, social, or other concern to the community." (34)

This Note addresses the confusion among lower courts regarding whether curricular speech can ever pass the first hurdle of the Pickering/Connick test, that is, whether curricular speech can ever amount to a matter of public concern. At stake in this determination is the very power structure of public schools. Power to set curricula will either remain with school boards or come under the control of individual teachers. (35) If courts adopt a narrow definition of public concern, school boards will select curricula for the guidance of children; (36) if, on the other hand, courts adopt an expansive understanding of public concern, teachers will decide what children are taught. (37) Dissenting from the Fourth Circuit's initial decision in Boring, Judge Widener proclaimed:

I do not know of a more significant case to be decided in this court in my experience. The question is who is to set the curriculum, the teachers or the school authorities. Who is to influence young minds? From Plato to Burke, the greatest intellects of Western civilization have acknowledged the importance of the very subject at hand ... (38) This Note argues that teacher curricular speech does not attain public concern status unless it falls within a narrow exception for allegations of constitutional violations. Part I contends that, as a general rule, the First Amendment provides no protection for public employees speaking in their roles as employees. Part I further maintains that the Court has carved out a narrow exception to its general rule: when an employee alleges a constitutional violation by her government employer, that allegation will receive public concern protection even if it is delivered on the job. Part II argues that the Sixth Circuit's broad, content-focused test for public concern is unsatisfactory and should be rejected. Part III argues that a narrow exception limited to constitutional complaints (39) makes sense from a policy standpoint.

  1. SPEECH BY A PUBLIC EMPLOYEE IN HER ROLE AS AN EMPLOYEE MAY BE PROTECTED ONLY IF IT IS "INHERENTLY OF PUBLIC CONCERN"

    Supreme Court decisions regarding public employee speech establish that context, particularly the role of the speaker, is central to the determination of whether speech receives the provisional (40) protection accorded matters of public concern. Section I.A concludes that because curricular speech is speech as an employee, under most circumstances the First Amendment provides no protection for curricular speech. Section I.B argues that Connick carves out a narrow exception to the general rule developed in Section I.A. The narrow exception grants special protection to allegations of constitutional violations by government employers, even when those allegations arise from a government employee on the job.

    1. The Broad Category: Matters of Public Concern

      According to Connick, speech touching on a matter of public concern is best identified by the "content, form, and context" of the speech. (41) Since the speaker's role is part of the context of the speech, the fact that a viewpoint would qualify as a matter of public concern when expressed as a citizen does not automatically mean the same viewpoint deserves public-concern protection when expressed as an employee.

      Connick's context-sensitive test fits with the history of the Supreme Court's First Amendment jurisprudence. For much of the twentieth century, public employees enjoyed no First Amendment protection from disciplinary action, even when they spoke as citizens. (42) But the Court's First Amendment jurisprudence has undergone significant changes in the century since...

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