Preparing students for democratic participation: why teacher curricular speech should sometimes be protected by the First Amendment.

• Author: Gardner, Anne

1. INTRODUCTION

   Deb Mayer taught a multi-age fourth, fifth, and sixth grade classroom in a college town in the middle of Indiana. (2) Using the magazine, Time for Kids, Ms. Mayer taught a school approved unit on the Iraq war. (3) An age appropriate conversation ensued in which Ms. Mayer facilitated the students' discussion of war and the possible alternatives--including peace. (4) A student asked Ms. Mayer if she had ever done anything to support peace. (5) Ms. Mayer responded, "[w]hen I drive past the courthouse square and the demonstrators are picketing I honk my horn for peace because their signs say, '[h]onk for peace.'" (6) Ms. Mayer was "ultimately discharged" because of her classroom discussion. (7)

   David Chila-Nakai read Hockey Fever in Gogan Falls (8) with his elementary school classroom. (9) After reading the part of the book that discussed the disparity in uniforms between two teams, Mr. Chila-Nakai facilitated a classroom discussion of "how people position each other in classist ways based on the clothes [they] wear[]." (10) The discussion grew into a classroom curricular project involving Nike, fair wages, and child labor. (11) Students participated in inquiry projects; a guest speaker spoke to the class about the "treatment of factor workers in Third World countries." (12) Mr. Chila-Nakai found his "role in the classroom [] blurred; [he] was both a resource and a learner." He shared his teaching experience in an education journal and celebrated "how the classroom could offer space for conversations using the daily texts that students meet at school." (13)

   The difference between the above scenarios lies mainly in the outcome. Ms. Mayer lost her job for her classroom speech. Mr. Chila-Nakia was lauded in an education journal for using an exemplary teaching methodology. Everyday in elementary and secondary classrooms throughout the United States, teachers facilitate active engagement in activities that promote democratic (14) ways of thinking. While such teaching has a strong pedagogical basis, it is unlikely that most courts would constitutionally protect the teacher's speech.

2. OVERVIEW

   This note will examine the legal basis and educational framework for First Amendment protection of classroom speech. The Supreme Court of the United States has not directly addressed the constitutional issues implicated in teacher classroom speech. As a result, the circuit courts are split in the application of an appropriate analysis. (15) In most circuits, teacher curricular speech is not protected speech. (16) Among the circuit courts, teacher curricular speech is governed by three competing doctrines: public employee speech, student speech, and academic freedom. (17) While the Fourth, Fifth, Sixth, and Seventh Circuits have applied the Pickering public employee analysis, (18) the First, Second, Eighth, and Tenth Circuits have expanded the Hazelwood student speech analysis to include teacher curricular speech. (19) While the teacher, as speaker, is a public employee, the public employee speech doctrine does not fully account for additional protections that may exist within the classroom, nor does it fully account for the distinction between the government as employer and the government as sovereign provider of education. However, to analogize teacher speech with student speech disregards the different roles of students and teachers within the school environment.

   It is unclear whether academic freedom protections alluded to by the Supreme Court apply to elementary and secondary classrooms. (20) Although the Supreme Court has applied the public employee speech doctrine to elementary and secondary teachers, the Court has applied the academic freedom doctrine almost exclusively to university professors and their institutions. (21) Some circuit courts have based their decisions on academic freedom, but those decisions have laid dormant for over thirty years, ignored (but not explicitly overruled) as those circuits have applied the public employee or student speech doctrine to curricular speech.

   This note argues that teacher curricular speech occupies a unique position among protected speech, not fully accounted for by any of the doctrines currently employed. This argument is grounded in the educational and philosophical purpose of education and the methods by which that purpose can be achieved.

3. PUBLIC EMPLOYEE SPEECH DOCTRINE

   1. Supreme Court Jurisprudence

      The Pickering balancing test serves as the basis for the current employee speech doctrine. (22) In Pickering v. Board of Education of Township High School District 205, the Supreme Court developed a two-part threshold test used to analyze whether the First Amendment protected public employee speech. (23) The test has been applied to both teachers and other public employees. (24) For over a decade, the Court elaborated on the threshold portion (25) of the test in teacher, as public employee, cases. Then, in 1983 in Connick v. Myers, (26) the Court began to develop the contours of the balancing part (27) of the test. However, no Supreme Court case has applied the new contours of the balancing test to teachers as public employees. Most recently, in Garcetti v. Ceballos, (28) the Court distinguished employees speaking pursuant to their employment duties as non-citizens for purposes of First Amendment protection.

      In Pickering, the Township Board of Education dismissed Marvin Pickering from his teaching position for writing to a local newspaper to express his criticism of the school board and the superintendent. (29) Pickering argued that his dismissal violated his First Amendment constitutional right; the School Board claimed that they could legally dismiss Pickering under Illinois Statute. (30)

      The Supreme Court first articulated that the First Amendment did apply to public employees, and then it established a two-part test to determine the circumstances under which a public employee's speech qualified for First Amendment protections. (31) In the first part of the test, the employee must establish that his speech addresses "matters of public concern." (32) If this public concern threshold is met, the Court proceeds to balance the government's interest (as employer) and the speaker's interest (as citizen). (33) In this second part of the test, the burden shifts to the government employer to show that its interests "in promoting the efficiency of [its] public services" outweighs the employee's free speech right. (34)

      In Pickering, the Court first determined that a teacher writing to the local newspaper about a bond issue is a citizen speaking on a matter of public concern. (35) Then the Court struck the government/citizen balance in favor of Pickering because the letter did not interfere with his daily duties or disrupt the school generally; it held that the statute and the dismissal were in violation of Pickering's First Amendment rights. (36)

      In the 1970s, the Supreme Court clarified the "matter of public concern" part of the Pickering balancing test in several cases also involving teacher speech. (37) The Court recognized that a teacher's participation in public argument about a university's status was a matter of public concern. (38) A teacher's communication with a radio station about a school memorandum regarding the relationship between teacher dress and public support of school bond issues also qualified as a matter of public concern. (39) The Court held that even when a teacher expressed her views in a private meeting with a principal, she was entitled to First Amendment protections and her statements about the school's racially discriminatory policies involved a matter of public concern. (40) In each of these cases, the Court held that the balance clearly tipped in favor of the teacher's rights.

      In the 1980s, the Supreme Court articulated the circumstances in which the balancing part of the test might not fall in the public employee's favor. (41) In Connick, the Court examined a case in which an assistant district attorney was terminated after circulating a questionnaire among fellow employees. (42) In analyzing the case, the Court first established that Myers' question about whether employees felt pressure to work on political campaigns addressed a matter of public concern. (43) However, when applying the balancing part of the test, the Court concluded that Myers' method of giving her questionnaire in the office constituted an adequate disruption of the workplace, tipping the balance in favor of the government employer's interest. (44)

      Although the cases involving the threshold prong of the test involved teachers as public employees, teachers were not the subject of any of the cases that elaborated on the balancing prong of the test. These cases often gave more weight to the government as employer. (45) The Court has emphasized the distinction between decisions made by the government as employer and as sovereign, concluding that upon review of constitutional public employee speech issues, "the government as employer indeed has far broader powers than does the government as sovereign." (46)

      In 2006, the Court articulated a new distinction in the public employee speech doctrine. (47) When Los Angeles County Calendar Deputy Richard Ceballos wrote a memo in his workplace urging the dismissal of a case, he experienced "retaliatory employment actions." (48) With Justice Kennedy writing for the majority, the Court distinguished Ceballo's speech as written "pursuant to his duties" and not as a citizen. (49) The Court held that speech made pursuant to official duties does not qualify as protected speech because the speaker is not acting as a citizen for First Amendment purposes. (50) Thus, the Court did not even apply Pickering, which only governs speech by citizens.

      Justice Stevens, Justice Souter (joined by Justice Stevens and Justice Ginsburg), and Justice Breyer filed dissenting opinions in the case. Justice Stevens argued that the distinction...