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Chapter Eight

Teacher Contracts, Rights, and Freedoms

TEACHER CONTRACTS

Offer and Acceptance

For a teacher contract to be legal and binding, there must be an offer from the proper school officials and an acceptance by the employee (teacher). A contract is not binding until both parties have agreed to the terms of the written contract through their authorized signatures.

Valid Consideration

For a contract to be legal, it must contain some reward for the person per- forming the duties outlined in the contract. In teacher contracts, the valid consideration will be a sum of money. The only times this could become a legal controversy for schools are instances where educators or noneducators volunteer to perform employment tasks for schools, such as coaching athlet- ics, directing a play, and so forth. If a contract is entered into between the school and the volunteer, there must be some valid consideration, even if it is only a dollar.

Legal Subject Matter

In relation to teacher contracts, legal subject matter would be any content area (subject) or school activity in which the teacher signing the contract is licensed or certified. The legal subject matter for the contract is contained within the license or certificate that is held by the teacher, and the curriculum

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-09-06 13:44:21.

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and extracurricular activities that have been created and approved by admin- istrative or board of education policy.

Competent Parties

Any individual signing a teaching contract must be an adult, sound of mind, and in full control of their faculties at the time of the contract signing. For example, someone under the influence of alcohol or drugs, or a person deemed insane by the courts, would not be considered a competent party.

The competent party for the school is determined by the statutes of the state. Since only school officials can perform discretionary duties, and dis- cretionary powers can only be granted by the state legislature, one must look to the statutes for guidance. In most states, teacher contracts can only be granted by the board of education. In some rare instances, the statutes have given some other school authority this discretionary power.

This is often misunderstood by the public and by entry-year teachers. Some boards of education often instruct the superintendent or personnel

director to offer contracts to prospective teachers. Sometimes the contracts offered have been signed by the president of the board. However, in states where school administrators are employees and not officials, the board of education would have to approve the contracts at an open board meeting through the passage of a formal motion.

Definite Terms

Teacher contracts specify only that the teacher is employed to teach subjects for which he is licensed and to perform other duties as prescribed by board and administrative policy, usually defined as “duties assigned by the princi- pal [or appropriate administrator].” The contract does not have to contain the specific subjects to which the teacher will be assigned. The school authorities have the flexibility to assign teachers to any subject for which he is licensed.

Some school districts have negotiated agreements with a teachers’ union that restrict the board’s flexibility with regard to specific teacher assign- ments. For example, some negotiated agreements specify a date by which the teacher must be notified of his assignment, and no change can be made thereafter without his approval. If no negotiated agreement on this issue is in place, or if there is no board policy to the contrary, common law concerning contracts would give the school authorities flexibility to assign teachers to subjects in any manner consistent with each teacher’s teaching license.

Limited Contracts

These contracts usually range from one to five years in duration. Entry--year teachers start with a one-year contract. Many school systems offer only one-

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Teacher Contracts, Rights, and Freedoms 163

year limited contracts and continuing contracts (tenure). Others allow teach- ers to progress from one- to five-year contracts through graduated steps (such as one-, two-, three-, and five-year contracts) until they achieve tenure or work their entire career on limited contracts. States that do not offer tenure operate solely on limited contracts.

A limited contract is not considered a property right, and therefore the teacher is not in the legal position of the natural anticipation of continued employment. A limited contract can be nonrenewed by following procedural due process as determined by state statute. Nonrenewal can only occur at the end of the contract period. For one-year contracts, nonrenewal could occur at the end of each year. For a teacher on a three-year limited contract, the nonrenewal could only occur at the end of the third year, and so forth.

Continuing Contracts

Teachers obtain continuing contracts (tenure) by earning graduate degrees and accumulating successful experience. Once a continuing contract has been granted, the contract bestows upon the teacher a property right that includes the anticipation of continual employment. Continuing contracts can- not be nonrenewed as limited ones can. They must be terminated for specific reasons. Otherwise, the teacher is under continuing employment status.

Termination of Contracts

Teacher contracts, both limited and continuing, and limited administrator contracts can be terminated during the contract. Grounds for dismissal of educators under contract are as follows.

Incompetency

The most common forms of incompetency in teachers are a lack of subject matter knowledge and a lack of classroom management skills, including the ability to maintain student discipline. However, there are other forms of incompetency that are recognized by the courts. They fall under the follow- ing categories:

• poor relationship with other teachers • lack of cooperation with administration • poor attitude/disruptive influence • not in harmony with the philosophy of the school

These categories are affective in nature and indicate the courts’ acceptance of the fact that teaching is no longer an isolated profession. Instructional schemes and schedules require teachers to work closely with other teachers

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and the administration. The effectiveness of the instructional program de- pends on teamwork and the creation of a learning community. If a teacher is preventing this from happening through her attitude or behavior, the courts have deemed this to be a form of incompetency.

Insubordination

Insubordination is defined as a willful and deliberate refusal to follow board policy, administrative policy, or administrative directive. Such blatant behav- ior can result in the immediate dismissal of a teacher, and it is almost inde- fensible if the charges are true.

Immorality

For educators to be dismissed or terminated under a charge of immoral behavior or moral turpitude, there must be a nexus (connection) between the personal behavior that is considered immoral and their effectiveness as pro- fessional educators. Said another way, their private or personal actions must have an adverse effect upon the school and the community. This adverse effect must create an environment that would seriously hinder their ability to be effective teachers.

This legal standard precludes any universal definition of immorality. Each charge must be judged by whether or not a nexus between private and professional life has been created. Needless to say, what some communities and boards of education would consider immoral would not be taken serious- ly in other localities.

Reduction in Force

There are times when a school board may reduce its teaching staff without the presence of incompetence, insubordination, or immorality. For legitimate reasons a board may reduce its teaching staff by dismissing teachers, both tenured and nontenured. Legitimate reasons for reduction in force are

Financial Crisis: Most states have a minimum staffing level for teaching, usually determined on a per-pupil basis. For example, schools could be held to a minimum staffing level of forty teachers for every one thousand stu- dents. Most schools operate above that minimum standard. If the district has a financial crisis, it can reduce staff to the minimum level by reducing the teaching force accordingly.

A Pattern of Declining Enrollment: If the school system has experi- enced a pattern of declining enrollment, they may reduce staff to accommo- date this demographic shift. It should be noted that a one-year aberration in enrollment may not be considered a pattern of declining enrollment. For example, if a school system has 500 seniors, 400 juniors, 488 sophomores,

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Teacher Contracts, Rights, and Freedoms 165

and 490 freshmen, the small junior class would not be considered a pattern of declining enrollment.

Elimination of Programs: If a school system eliminates a program, the teaching positions within those programs can be eliminated. An example would be a school system with a comprehensive high school that decided to join or contract with a vocational district for all career and technical courses. The elimination of a program has to be done for educational reasons and not solely to rid the school system of the teachers currently employed in the program.

School Reorganization: If school districts are merged or consolidated, the new district may reduce staff if the reorganization has created an excess of teachers in a certain field. For example, if two small districts merge, each having two advanced science teachers, the new district might only need a total of three such teachers for these advanced courses. One science teaching position could be eliminated.

Unless there is a negotiated agreement with the teachers’ union to the contrary, reduction in force is based on the type of contract held by the teacher and the teacher’s years of experience in the school district. The most protected teachers are those on continuing contracts, from most experienced to least experienced. The protection then goes to teachers on limited contracts, from most experienced to least experienced. Following is a chart that illustrates teacher protection, from most to least.

Type of Contract Experience Teacher A Continuing 20 years Teacher B Continuing 5 years Teacher C Limited 12 years Teacher D Limited 8 years

The “Bumping” System: If a teacher holds dual licensing and his or her teaching position has been eliminated due to a reduction in force, that teacher may “bump” a teacher with less protection. For example, if a teacher holding dual licensing in English and social studies is a victim of reduction of force in English but has a higher contract and experience level than a teacher in social studies, the English teacher could claim the social studies position and thus “bump” the less-protected social studies teacher. The fact that the Eng- lish teacher has never taught social studies is not a legal consideration.

Union Payments and Teacher Contracts: Many public school districts have a unionized faculty, however not all teachers may have a desire to join the union. In those cases, can the teachers be required to still pay fees to the union, even if they do not wish to join the union? The courts have divided the

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precedents into two distinct types of compelled payments through the 1977 decision in the case of Abood v. Detroit Board of Education. Requiring nonmembers to pay for a union’s political activities violates First Amend- ment protections for free speech, however it is constitutional to require non- members to help pay for a union’s collective bargaining efforts to prevent what might be seen as “freeloading,” where the nonmembers receive the benefits of collective bargaining without having to bear any of the costs associated.

This second interpretation established by the Abood case has been chal- lenged at lower court levels over the past few years, most notably in the recent case of Friedrichs v. California Teachers Association. In this case, Rebecca Friedrichs, along with other teachers who filed suit with her, opted out of the California Teachers Association and argued that they should not have to pay any dues to the union. The case hinges on two main arguments. First, the plaintiffs say that when it comes to public employee unions, all activity is inherently political. Through the collective-bargaining process, unions essentially lobby public officials to allocate resources for one purpose (schools and teachers) rather than others, or to raise revenue to support high- er spending. The plaintiffs say that they may not agree with such political advocacy and therefore shouldn’t have to support it.

The second argument hinges on the idea that collectively bargained teach- er contracts include provisions the teachers themselves may oppose, such as seniority systems that establish pay scales based on time in service and not performance. They argue this could be a disincentive for teachers. This case was argued before the Supreme Court in January of 2016, but before a decision was drafted, Justice Antonin Scalia died. As result the court split 4–4 on the decision and the lower court verdict stands, supporting the pay- ments and not setting a precedent.

Private/Parochial Schools

It is legal for private/parochial schools to practice “at will” employment. However, many such schools provide yearly or multi-year contracts. Some contracts even contain provisions whereby the teacher can attain tenure (con- tinual contract status), which is a property right, thus giving the teacher more legal protection against nonrenewal, or termination through reduction in force or due process. The agreements between a private/parochial school and its faculty have to follow applicable federal regulations if federal funding is accepted by the institution.

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Teacher Contracts, Rights, and Freedoms 167

TEACHERS’ RIGHTS AND FREEDOMS

Freedom of Expression

In determining the extent of freedom granted to teachers in relation to free speech and expression, three legal sources must be considered: (1) the consti- tutional rights of the teacher as a citizen, primarily the First Amendment right to free speech; (2) the statutory rights of the school board to govern the school; and (3) contractual conditions of employment.

Criticism of School Policy or Personnel

In examining the right of a teacher to speak as a citizen on a matter of public concern, the courts use a balance of interest test as referred to in the Picker- ing case (see Pickering v. Board of Education of Township High School in the case summaries). The interest of the teacher to speak out as a citizen on a matter of public concern is balanced against the state’s interest to have an orderly educational environment. Following are significant points that will affect the balance test.

• Teachers may be forced to relinquish First Amendment rights they would otherwise possess to comment on matters of public interest in connection with the operation of the public schools if such comments (written or spoken) interfere with the school’s interest in promoting an efficient edu- cational system. (See Perry v. Sindermann; Mt. Healthy Board of Educa- tion v. Doyle; and Board of Regents of State Colleges et al. v. Roth.)

• As a general rule of thumb, the criticism is more likely to be protected if the teacher is not speaking about immediate superiors or peers. If the teacher criticizes fellow teachers or the principal, there is a greater likeli- hood that such action will disrupt the educational environment and thus be afforded less First Amendment protection.

• In order to claim First Amendment protection, the teacher must be speak- ing as a citizen and on matters of public concern. The controversy usually arises over whether the school situation that has been aired publicly is serious enough that it has become a matter of public concern.

• The school may not declare that any speech by a teacher is inappropriate because by doing so the teacher did not follow the chain of command. If the issue is of vital importance to the community, and thus a matter of public concern, the teacher may have a right to speak out as a citizen if he thinks the problem is not being properly addressed.

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Controversial Teaching Methods

If a teacher uses a controversial teaching method and is challenged, the teacher must show that the methodology is related to a valid instructional objective (see Keefe v. Geanakos). In another instance, a teacher showed the film Pink Floyd: The Wall without any attempt to tie the content of the film to her instructional objectives. Here, dismissal was upheld by the court (Fowler v. Board of Education of Lincoln County, Kentucky, 1987). These two contrasting cases illustrate when controversial methods are legally ac- ceptable and when they are not.

Academic Freedom

Academic freedom includes the right of teachers to speak freely concerning their subjects, to use innovative approaches, to experiment with new ideas, to choose appropriate pedagogical strategies, and to select educational materi- als. Academic freedom comes under the ambit of the First Amendment. The courts have held that it is fundamental to the promotion of a democratic society. Academic freedom allows the evaluation and criticism of values and practices in order to allow for political, social, economic, and scientific progress. Academic freedom, however, is not absolute. The courts will bal- ance its interest against that of competing educational values. Some areas to which academic freedom does not extend include the following:

• Teachers cannot preach their religious beliefs in class. • Teachers may not disregard texts and syllabi. • Teachers cannot discuss topics or distribute material that is not relevant to

the curriculum or instruction.

However, the courts have indicated that teachers do not have First Amend- ment free speech protections when it comes to curricular decisions. “Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom,” the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said in its opinion. In the case of Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, the court made clear the teacher had been hired to teach a curriculum and the choices of the teacher ran counter to the wishes of the school board. “When a teacher teaches, the school system does not regulate that speech as much as it hires that speech,” Judge Jeffrey S. Sutton wrote. “Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary. And if it is the school board that hires that speech, it can surely regulate the content of what is or is not expressed, what is expressed in other words on its behalf.”

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Teacher Contracts, Rights, and Freedoms 169

But while Evans-Marshall case satisfied two earlier Supreme Court stan- dards on public-employee speech, the plaintiff did not pass the standard set by the Court’s most recent decision in this area, Garcetti v. Ceballos. In Garcetti, decided in 2006, the Court held that public employees do not have First Amendment protection for speech “pursuant to” their official duties.

Religious Holidays for Teachers

State statutes and school policies usually permit teachers to be absent for major holidays of recognized religions. School calendars reflect these holi- days. Sometimes teachers request time off for religious holidays that do not match those of the school calendar. For example, if the school calendar follows the Judeo-Christian holidays, an Islamic teacher might request days off to worship during Ramadan. The school can grant such a request, howev- er, it does not have to pay for such days. Also, teachers cannot take unpaid religious holidays at will. Although the number of days does not have to exactly correspond to the number of paid leave days as specified in board policy and the school calendar, the courts have used this data as a guideline to determine the number of religious holidays a teacher may use. The courts have used as a criterion how much such absenteeism affects the quality of an instructional program.

A Teacher’s Rights to Wear Religious Clothing in Public Schools

Most public schools, through policy or state statute, prohibit the wearing of religious garb by teachers. The courts have generally upheld these restric- tions as a valid interpretation of the establishment clause of the First Amend- ment. A majority of educators and jurists believe that the wearing of religious garb by educators introduces a sectarian influence that should not be present in a public school. Such religious garb also seems to give the impression that the school supports a particular religion. Although schools may not infringe upon a teacher’s religious beliefs, actions based on this religious belief may be limited when a compelling interest of the state is at stake.

Teachers are permitted, under the fair use doctrine, to use certain copyrighted materials, both hard copy and technology, under certain conditions. When examining the fair use standard, the court uses four criteria. They consider

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

2. The nature of the copyrighted work. 3. The amount and substantiality of the portion used in relation to the

copyrighted work as a whole.

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4. The effect of the use upon the potential market for or value of the copyrighted work.

Specific exceptions for teachers include single copies of

• a chapter of a book • an article from a periodical or newspaper • a short story, short essay, or short poem • a chart, graph, diagram, drawing, cartoon, or picture from a book, news-

paper, or periodical

Teachers can make multiple copies of copyrighted material for classroom use only. The number of copies must not exceed the number of students in the class. Also, the copying must meet tests of brevity, spontaneity, and cumula- tive effect, and each copy must include a notation of copyright.

“Brevity” is met by using excerpts from longer published works, or com- plete works of short length such as 250-word poems, or articles of less than 2,500 words. “Spontaneity” is legitimate when the inspiration of the teacher and the decision to use a work are so close to the time of instruction that it would be unreasonable to expect a timely reply to a request for permission. “Cumulative effect” obtains when the material is used for only one course, with consideration of the number of times the work is copied without permis- sion.

Teachers should be careful when extending the fair use doctrine to tech- nology, such as DVDs and videos. Although interpretation of the law con- cerning technology, including the Internet, is in its infancy, it is reasonable to assume that the fair use doctrine will be applied by the courts.

LICENSING AND STATE REGULATION FOR PRIVATE/ PAROCHIAL SCHOOLS

Through statutory degree, states have extensive regulatory authority over private/parochial schools by exercising their police powers. In order to apply their police power to legally regulate private/parochial schools, the state must show a compelling, legitimate, governmental interest without violating par- ents’ Fourteenth Amendment right to direct, by choice of school, the educa- tion of their child.

State regulatory authority over private/parochial schools usually is mani- fested in two ways: through (1) chartering and (2) licensing. In some states, no state educator (teacher or administrator) license is required. In others, a separate license for non-public use (teacher or administrator) is acceptable

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Teacher Contracts, Rights, and Freedoms 171

even though the requirements to achieve the nonpublic license are less than that required for state public use.

Many private/parochial school systems have voluntarily required that all teachers and administrators hold a state public license. Others informally support this position by only hiring teachers and administrators who hold state public licenses.

In considering private/parochial parents’ challenges to state regulation, the courts, although not in total consensus on all issues, tend to view the conflict from the prospective of the degree of state regulation as opposed to whether there should be any state regulation at all.

For example, much of the conflict revolves around educational standards and how they are assessed. The courts have tended to accept that standards and common assessments are rationally related to the legitimate and compel- ling interest of the state. Private/parochial parents have argued that mandated standards and assessments infringe upon their Fourteenth Amendment right to direct, by choice of school, the education of their child. They also argue that such standards and assessments eradicate the differences between public and private/parochial schools.

In considering these two legal positions, the courts have tended to favor some regulation of the state with regard to educational standards and assess- ments. However, this advocacy of a state’s compelling public interest, ap- plied through its police powers, must not be so intrusive that it displaces the private/parochial school’s discretion in designing its own unique educational program. Difficulty arises when parents divorce with children enrolled in a private/parochial school. No school policy can cover all the circumstances that may accompany a divorce. Therefore, the school must abide by the agreement that the divorced parents have negotiated in court. What is imper- ative for the private/parochial school is that it carry out the dictates of such agreements to the letter so as to avoid charges of negligence or interference with the rights of one or both of the divorced parents.

Key to good administration is to revisit the contractual agreement that was signed between the school and the parents prior to the divorce and to restructure the contractual agreement according to the court’s mandate.

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Chapter 8172

CASE SUMMARIES

Pickering v. Board of Education of Township High School

District 205, Will County Appeal from the Supreme Court of Illinois Argued March 27, 1968; Decided June 3, 1968

Topic: Teachers’ rights. Issue: A teacher’s right to speak out freely on matters of public concern. Facts: The appellant, Marvin L. Pickering, was dismissed from his job as

a teacher in Township High School District 205, Will County, Illinois, for sending a letter to a local newspaper criticizing the board’s allocation of school funds between education and athletic programs and the board’s and superintendent’s methods of informing or preventing the informing of the school district’s taxpayers of the real reasons why tax revenues were being sought for the schools.

In February 1961, the appellee board of education tried to get the voters to approve a bond issue to raise $4,875,000 to build two new schools. The proposal was defeated. The board went back to the voters in December 1961, and a bond issue was passed to raise $5,500,000 to build the schools. The schools were built with the money raised, and in May 1964, the board pro- posed a tax increase for educational purposes. It was defeated then and again in September of that year. It was after the second defeat of the proposal that appellant Pickering wrote the letter to the editor. The letter criticized the board for not being honest about where the money was spent when the new schools were built, for not being honest about how money was being allocat- ed, and for misrepresenting teachers’ support of the tax proposal. He also charged that the superintendent coerced teachers into supporting it. His real issue was how much money was going into athletics at, what he believed, the expense of other educational needs, particularly teachers’ salaries.

Pickering was dismissed for writing and publishing the letter because the board determined that the letter was “detrimental to the efficient operation and administration of the schools of the District” and that “interests of the school required his dismissal.” The board held the required full hearing and charged that many of the statements in the letter were false and that the publication of the statements unjustifiably impugned the “motives, honesty, integrity, truthfulness, responsibility, and competence” of both the board and the school administration. The board also charged that the false statements damaged the professional reputation of its members, and of the school ad- ministration; would be disruptive of faculty and discipline; and would tend to foment “controversy, conflict and dissension” among teachers, administra- tors, the board of education, and the residents of the district.

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At no time during the proceedings was any evidence introduced as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these lines were made.

Pickering claimed that his letter was protected by the First Amendment. The Illinois courts reviewed the proceedings solely to determine whether the board’s findings were supported by substantial evidence and whether the facts as found supported the board’s conclusion that the letter was “detrimen- tal to the best interests of the school.” They upheld Pickering’s dismissal, rejecting his claim on the grounds that acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools “which in the absence of such position he would have an undoubted right to engage in.”

Findings of the U.S. Supreme Court: Justice Thurgood Marshall delivered the opinion of the Court, which reversed the lower court’s decision for a number of reasons.

1. The premise that teachers may constitutionally be compelled to give up their First Amendment rights they would otherwise enjoy as citi- zens to comment on matters of public interest in connection with the public schools in which they work has been unequivocally rejected in many prior decisions of the Court. There has to be a balance between the interests of the teacher, 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.

2. The board contended that Pickering had a duty to be loyal and suppor- tive of his superiors or at the very least a responsibility to speak factually. The Supreme Court found that in this case the statements appellant made were in no way directed toward any person with whom he would normally be in contact with in the course of his daily duties as a teacher and that his statements did not impact the board’s ability to operate the school. They also felt that teachers needed to be able to speak out freely on matters concerning schools without fear of retalia- tion or dismissal. In addition, no evidence was introduced to support the allegations that the letter damaged the professional reputations of the board or the superintendent or that it would “foment controversy and conflict among the Board, teachers, administrators, and the resi- dents of the District.” The tax issue had already failed so his letter couldn’t impact it, and all the board had to do was publish a factual statement contradicting Pickering’s statement. The board had to make sure that they were not confusing the district’s interests with their

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Chapter 8174

interests. For the most part, other than the board, people were either disbelieving or apathetic about the whole thing.

3. The board claimed that Pickering’s statements were false. The Su- preme Court found that there was some truth in what Pickering said and that even the false statements were innocently or negligently made. Even false statements made under these circumstances are pro- tected by the First Amendment.

4. Because of prior rulings, the Court was hesitant to make an across-the- board ruling about dismissal of public employees making libelous statements against employers. In this case, they felt that because Pick- ering’s employment was “only tangentially and insubstantially in- volved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.”

Dissenting: Justice White concurred in part and dissented in part. The Court held that truthful statements by a teacher critical of the school board are within the scope of the First Amendment. White agreed with this part of the ruling. However, even false statements that are innocently and negligent- ly made are protected. Justice White felt that the Court spent too much time re-examining the effect of Pickering’s letter on the school system. He thought this was irrelevant because even if damage had been done, Pickering would have been protected if he made the statements innocently or negligent- ly. If, on the other hand, he knowingly and recklessly made the false state- ments, he would not be protected by the First Amendment and could be dismissed regardless of impact on the school system.

The following is the letter written by the appellant and appearing in the Letters to the Editor section of Graphic Newspapers, Inc., Thursday, Septem- ber 24, 1964, page 4.

Dear Editor: I enjoyed reading the back issues of your paper, which you loaned to me.

Perhaps others would enjoy reading them in order to see just how far the two new high schools have deviated from the original promises by the Board of Education. First, let me state that I am referring to the February thru Novem- ber, 1961 issues of your paper, so that it can be checked.

One statement in your paper declared that swimming pools, athletic fields, and auditoriums had been left out of the program. They may have been left out but they got put back in very quickly because Lockport West has both an auditorium and athletic field. In fact, Lockport West has a better athletic field than Lockport Central. It has a track that isn’t quite regulation distance even though the board spent a few thousand dollars on it. Whose fault is that? Oh, I forgot, it wasn’t supposed to be there in the first place. It must have fallen out of the sky. Such responsibility has been touched on in other letters but it seems

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one just can’t help noticing it. I am not saying the school shouldn’t have these facilities, because I think they should, but promises are promises, or are they?

Since there seems to be a problem getting all the facts to the voter on the twice defeated bond issue, many letters have been written to this paper and probably more will follow, I feel I must say something about the letters and their writers. Many of these letters did not give the whole story. Letters by your Board and Administration have stated that teachers’ salaries total $1,297,746 for one year. Now that must have been the total payroll, otherwise the teachers would be getting $10,000 a year. I teach at the high school and I know this just isn’t the case. However, this shows their “stop at nothing” attitude. To illustrate further, do you know that the superintendent told the teachers, and I quote, “Any teacher that opposes the referendum should be prepared for the consequences.” I think this gets at the reason we have prob- lems passing bond issues. Threats take something away; these are insults to voters in a free society. We should try to sell a program on its merits, if it has any.

Remember those letters entitled “District 205 Teachers Speak,” I think the voters should know that those letters have been written and agreed to by only five or six teachers, not 98% of the teachers in the high school. In fact, many teachers didn’t even know who was writing them. Did you know that those letters had to have the approval of the superintendent before they could be put in the paper? That’s the kind of totalitarianism teachers live in at the high school, and your children go to school in.

In last week’s paper, the letter written by a few uninformed teachers threatened to close the school cafeteria and fire its personnel. This is ridiculous and insults the intelligence of the voter because properly managed school cafeterias do not cost the school district any money. If the cafeteria is losing money, then the board should not be packing free lunches for athletes on days of athletic contests. Whatever the case, the taxpayer’s child should only have to pay about 30 cents for his lunch instead of 35 cents to pay for free lunches for the athletes.

In a reply to this letter your Board of Administration will probably state that these lunches are paid for from receipts from the games. But $20,000 in receipts doesn’t pay for the $200,000 a year they have been spending on varsity sports while neglecting the wants of teachers.

You see we don’t need an increase in the transportation tax unless the voters want to keep paying $50,000 or more a year to transport athletes home after practice and to away games, etc. Rest of the $200,000 is made up in coaches’ salaries, athletic directors’ salaries, baseball pitching machines, sod- ded football fields, and thousands of dollars for other sports equipment.

These things are all right, provided we have enough money for them. To sod football fields on borrowed money and then not be able to pay teachers’ salaries is getting the cart before the horse.

If these things aren’t enough for you look at East High. No doors on many of the classrooms, a plant room without any sunlight, no water in a first aid treatment room, are just a few of many things. The taxpayers were really taken to the cleaners. A part of the sidewalk in front of the building has already collapsed. Maybe Mr. Hess would be interested to know that we need blinds on the windows in that building also.

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Once again the board must have forgotten they were going to spend $3,200,000 on the West building and $2,300,000 on the East building.

As I see it, the bond issue is a fight between the Board of Education that is trying to push tax-supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don’t know whom to trust with any more tax money.

I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school? Respectfully, Marvin L. Pickering

Perry v. Sindermann

U.S. Supreme Court 1972 408 U.S. 593, 92 S. Ct 2694

Topic: Due process. Issue: Whether Robert Sindermann’s First and Fourteenth Amendment

rights were violated by termination of his employment by a board of regents in the State of Texas.

Facts: Robert Sindermann was a teacher in the state college system of the State of Texas from 1959 to 1969. He taught two years at the University of Texas and four years at San Antonio Junior College. He was then employed four successive years under a series of one-year contracts at Odessa Junior College from 1965 to 1969. He became a professor of government and social services in 1965 and was appointed, for a time, the cochairman of his depart- ment.

During the 1968–1969 academic year, controversy arose between Sinder- mann and the administration. He had been elected president of the Texas Junior College Teaching Association, and in this capacity, he became in- volved in public disagreements with the board’s policies, which included aligning himself with a group advocating the elevation of the college to four- year status, a change opposed by the regents.

As a result, his one-year contract was not renewed when it ended in May. Also, he was not allowed the opportunity of a hearing to challenge the basis of the nonrenewal.

Sindermann brought action in federal district court. He alleged that the regents’ decision not to rehire him was based on his public criticism of the policies of the administration, and this infringed on his right to freedom of speech. Also, the regents’ failure to provide him with an opportunity for a hearing violated the Fourteenth Amendment guarantee of procedural due process.

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Federal District Court Findings: The federal district court granted sum- mary judgment for the board of regents (petitioners).

Rationale: The federal district court concluded that the respondent had no cause for action against the petitioner since his contract of employment ter- minated May 31, 1969, and Odessa Junior College had not adopted a tenure system.

Court of Appeals Findings: The court of appeals reversed the judgment of the district court 430 F. 2d 939. The court of appeals granted a writ of certiorari, 403 U.S. 917.91 S. Ct 2226, 29 L. Ed. 2d 694.

Rationale: First, it held that despite the respondent’s lack of tenure, the nonrenewal of his contract would violate the Fourteenth Amendment if in fact it was based on his protected speech. Since the actual reason for the regents’ decision was “in total dispute” in the pleadings, the court remanded the case for a full hearing on this contested issue.

Second, despite the respondent’s lack of tenure, the failure to allow him an opportunity for a hearing would violate the constitutional guarantee of procedural due process if the respondent could show that he had an “expec- tancy” of reemployment. The court recommended a full hearing on this issue of fact.

U.S. Supreme Court Findings: “While we do not wholly agree with the opinion of the Court of Appeals, its judgment remanding this case to the District Court is affirmed.”

Rationale: “The first question presented is whether the respondent’s lack of a contractual or tenure right to reemployment, taken alone, defeats his claim that a nonrenewal of his contract violated the First and Fourteenth Amendment. We hold it does not.

“The District Court foreclosed any opportunity for the respondent to show that the decision not to renew his contract was in fact made in retalia- tion when it granted summary judgment.

“We agree with the Court of Appeals that there is a genuine dispute as to whether the college refused to renew the teaching contract on an impermis- sible basis.

“The respondent’s lack of formal contractual or tenure security in contin- ued employment at Odessa Junior College though irrelevant to his free speech claim is highly relevant to his procedural due process claim. But it might not be entirely dispositive.

“A teacher, like the respondent, who has held his position for a number of years, might be able to show from the circumstances of his service and from other relevant facts that he has a legitimate claim of entitlement to job tenure.

“We disagree with the Court of Appeals insofar as it held that a mere subjective ‘expectancy’ is protected by procedural due process. However, we agree that the respondent must be given an opportunity to prove the legitima-

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cy of his claim of such entitlement in the light of the policies and practices of the institution.

“Proof of such a property interest would not, of course, entitle him to reinstatement. But such proof would obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.”

Mt. Healthy City Board of Education v. Doyle

429 U.S. 274 (1997)

Issue: Evidence must show that a teacher’s exercise of constitutional rights was the motivating factor not to rehire before judicial action is jus- tified.

Findings: The Court of Appeals for the Sixth Circuit affirmed the judg- ment of the district court that Doyle was entitled to reinstatement with back pay. U.S. Supreme Court: “The judgment of the court of appeals is vacated, and the case is remanded for further proceedings consistent with this opin- ion.”

Facts: Doyle was a nontenured employee prior to the board not renewing his contract. He was elected president of the teachers’ association in 1969 for one year and the succeeding year served on its executive committee, and there was apparently some tension in relations between the board and the association. Beginning in 1970, he was involved in several incidents.

• He had an argument with another teacher, who slapped him. Doyle refused to accept an apology and they both were suspended, causing a teacher walkout and forcing the board to lift the suspension.

• He had an argument with employees of the school cafeteria over the amount of spaghetti served him.

• He referred to students, in connection with a disciplinary complaint, as “sons of bitches.”

• He made an obscene gesture to two girls in the cafeteria. • He made a telephone call to a local radio station, WSAI, giving informa-

tion about a memorandum from the principal regarding teacher dress, which he understood was to be settled by a joint teacher-administration action. He later apologized.

One month later, the superintendent recommended that Doyle not be rehired, along with nine other teachers. Doyle requested a statement of reasons and received the following statement:

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You have shown a notable lack of tact in handling professional matters which leaves much doubt as to your sincerity in establishing good school relation- ships.

A. You assumed the responsibility to notify WSAI Radio Station in re- gards to the suggestion of the Board of Education that teachers establish an appropriate dress code for professional people. This raised much concern not only within this community, but also in neighboring communities.

B. You used obscene gestures to correct students in a situation in the cafeteria causing considerable concern among those students present. Sincerely yours, Rex Ralph, Superintendent

Board of Regents of State Colleges et al. v. Roth

Certiorari to the United States Court of Appeals for the Seventh Circuit Argued January 18, 1972; Decided June 29, 1972

Topic: Tenure/teacher’s rights. Issue: David Roth, an assistant professor at a state university, had no

tenure rights to continued employment. He was informed that he would not be rehired after his first academic year, and he alleged that the decision not to rehire him infringed on his Fourteenth Amendment rights.

Facts: In 1968, Mr. Roth was hired for a fixed term of one academic year to teach at his first teaching job as assistant professor of political science at Wisconsin State University, Oshkosh. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969. The respondent completed that term. Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administration for suspending ninety-four black students without determin- ing individual guilt. He also criticized the university’s regime. He was in- formed, without explanation, that he would not be rehired for the ensuing year.

A statute provided that all state university teachers would be employed initially on probation and that only after four years’ continuous service could teachers achieve permanent employment “during efficiency and good behav- ior” with procedural protection against separation. University rules gave a nontenured teacher dismissed before the end of the year some opportunity for review of the dismissal but provided that no reason need be given for nonre- tention of a nontenured teacher, and no standards were specified for reem- ployment. Respondent brought this action claiming deprivation of his Four- teenth Amendment rights, alleging infringement of his free speech right be- cause the true reason for his nonretention was his criticism of the university administration and infringement of his procedural due process right because of the university’s failure to advise him of the reason for its decision. The U.S. District Court for the Western District of Wisconsin granted summary

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judgment for Roth on procedure issues, ordering university officials to pro- vide him with reasons and a hearing. The court of appeals affirmed the partial summary judgment, and certiorari was granted.

Findings: The U.S. Supreme Court, with Justice Stewart writing, held that where the state did not make any charge against the assistant professor that might seriously damage his standing and associations in his community and there was no suggestion that the state imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities, he was not deprived of “liberty” protected by the Fourteenth Amendment when he simply was not rehired in the job but remained as free as before to seek another. The Court further held that where terms of appoint- ment of the assistant professor secured absolutely no interest in reemploy- ment of the next year and there was no state statute or university rule or policy that secured his interest in reemployment or that created any legiti- mate claim to it, he did not have a property interest protected by the Four- teenth Amendment that was sufficient to require university authorities to give him a hearing when they declined to renew his contract of employment. Judgment of the court of appeals reversed and case remanded.

Justice Stewart delivered the opinion of the Court, in which Justices Bur- ger, White, Blackmon, and Rehnquist joined. Justices Douglas and Marshall filed dissenting opinions. Chief Justice Burger filed a concurring opinion, and Justice Powell took no part in the decision of the case.

Rationale: “The respondent had no contract of employment. Rather, his formal notice of appointment was the equivalent of an employment contract. The notice of his appointment provided that: ‘David Roth is hereby ap- pointed to the faculty of the Wisconsin State University.’ The notice went on to specify that the respondent’s appointment basis was for the academic year. And it provided that regulations governing tenure are in accord with Chapter 37.31 of the Wisconsin Statutes. The employment of any staff member for an academic year shall not be for a term beyond June 30th of the fiscal year in which the appointment was made.

“The respondent had no tenure rights to continued employment. Under Wisconsin statutory law, a state can acquire tenure as a ‘permanent’ employ- ee only after four years of year-to-year employment . . . A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment. There are no statutory or administrative standards defining eligibility for re-employment. State law thus clearly leaves the decision whether to rehire a non-tenured teacher for another year to the unfettered discretion of university officials.

“The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job security. As a matter of statutory law, a tenured teacher cannot be ‘discharged’ except for cause upon written charges and pursuant to certain procedures. A non-ten-

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ured teacher, similarly, is protected to some extent during his one--year term. Rules promulgated by the Board of Regents provide that a non-tenured teacher ‘dismissed’ before the end of the year may have some opportunity for review of the ‘dismissal.’ But the rules provide no real protection for a non- tenured teacher who simply is not re-employed for the next year. He must be informed by February l concerning retention or non-retention for the ensuing year. But no reason for non-retention need be given. No review or appeal is provided in such a case.

“In conformance with these rules, the President of Wisconsin State Uni- versity-Oshkosh informed the respondent before February 1, 1969, that he would not be rehired for the 1969–1970 academic year. He gave the respon- dent no reason for the decision and no opportunity to challenge it at any sort of hearing.

“The District Court granted summary judgment of the respondent on the procedural issue, ordering the University officials to provide him with rea- sons and a hearing. The Court of Appeals, with one judge dissenting, af- firmed this partial summary judgment. We granted certiorari. The only ques- tion presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and hearing on the University’s decision not to rehire him for another year. We hold that he did not.

“The requirements of procedural due process apply only to the depriva- tion of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of hearing is paramount. But the range of interests protected by procedural due process is not infinite.

“The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. Undeniably the respondent’s re-employment prospects were of ma- jor concern to him—concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interests at stake. We must look to see if the interest is in the Fourteenth Amendment’s protection of liberty and property.

“The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in the community. It did not base the non-renewal of his contract on a charge, for example, that he had been guilty of dishonesty or immorality . . . The State did not invoke any regulations to bar the respondent from all other public employment in state universities. . . .

“To be sure, the respondent has alleged that the non-renewal of his contract was based on his exercise of his right to freedom of speech. But this

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allegation is not now before us. The District court stayed proceedings on this issue, and the respondent has yet to prove that the decision not to rehire him was, in fact, based on his free speech activities. . . .

“Our analysis of the respondent’s constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for non-retention would, or would not, be appropriate or wise in public colleges and universities . . . We must conclude that the summary judgment for the respondent should not have been granted, since the respon- dent has not shown that he was deprived of liberty, or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accord- ingly, is reversed and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded.”

Justice Douglas, dissenting: “Respondent Roth had no tenure under Wis- consin law and he had only one year of teaching at Wisconsin State Univer- sity-Oshkosh. Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administrations for suspending an entire group of 94 black students without determining individual guilt. He also criticized the university’s regime as being authoritarian and autocratic. He used his classroom to discuss what was being done in the black episode; and one day, instead of meeting his class, he went to the meeting of the Board of Regents. In this case, an action was started in federal district court claiming in part that the decision of the school authorities not to rehire was in retaliation for his expression of an opinion.

“The district court, in partially granting Roth’s motion for summary judg- ment, held that the Fourteenth Amendment required the University to give a hearing to teachers whose contracts were not to be renewed and to give reasons for its action. The Court of Appeals affirmed.

“There may not be a constitutional right to continued employment if private schools and colleges are involved. The First Amendment, applicable to the states by reason of the Fourteenth Amendment, protects the individual against state action when it comes to freedom of speech and of the press and the related freedoms guaranteed by the First Amendment. . . .

“No more direct assault on academic freedom can be imagined than for the school authorities to be allowed to discharge a teacher because of his or her philosophical, political, or ideological beliefs. The same may well be true of private schools, if through the device of financing or other umbilical cords they become instrumentalities of the state. . . .

“When a violation of the First Amendment rights is alleged, the reason for dismissal or for nonrenewal must be examined to see if the reasons given are only a cloak for activity or attitudes protected by the Constitution. . . .

“In the case of teachers whose contracts are not renewed, tenure is not the critical issue. . . .

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“If this nonrenewal implicated the First Amendment, then Roth was de- prived of constitutional rights because his employment was conditioned on surrender of First Amendment rights and, apart from the First Amendment, he was denied due process when he received no notice and hearing of the adverse action contemplated against him. Without a statement of the reasons for the discharge and an opportunity to rebut those reasons—both of which were refused by the petitioners—there is no means short of a lawsuit to safeguard the right not to be discharged for the exercise of First Amendment guarantees.

“Accordingly, I would affirm the judgment of the court of appeals.”

Robert J. Keefe, Plaintiff, v. George J. Geanakos et al., Defendants

Civ. A. No. 69-1093

Topic: In Massachusetts’s district court a teacher seeks injunction and money damages for an allegedly wrongful suspension and threatened dismis- sal. These actions were taken as a result of the teacher using material contain- ing offensive language.

Facts: On October 8, 1969, Robert Keefe was suspended for a period of seven days for “unbecoming conduct and other good causes.” Causes for proposed dismissal were Keefe’s

• conducting himself in a manner unbecoming a teacher and department coordinator

• undermining public confidence by allowing students to build an outhouse as a symbol of the irrelevance of the school’s course work, schedules, and regulations

• using offensive materials • refusing to obey a direct order not to teach class and to remain in his office

Findings: In the opinion, written by District Judge Caffrey, the court denied the petition for temporary injunction.

Rationale: Before obtaining an injunction, a plaintiff must satisfy two requirements. First, plaintiff must demonstrate that if the injunction is denied he will suffer “certain and irreparable” damages. The court found that no irreparable harm could be done because, if the plaintiff prevailed, monetary damages would be an adequate remedy.

The second requirement that the plaintiff must show to secure an injunc- tion is a reasonable probability that he will ultimately prevail. Judge Caffrey sited Parker v. Board of Education as a very similar case. In this case, a teacher challenged his dismissal for using Brave New World as an infringe- ment of his First Amendment right to free speech. The court ruled that the First Amendment guarantee is not absolute. “Where abridgement to the right

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to free speech results from government action to protect other substantive public rights, no constitutional deprivation will be found to exist.”

Robert J. Keefe, Plaintiff, v. George J. Geanakos et al., Defendants, Appellees

No. 7463 U.S. Court of Appeals for the First Circuit

Topic: Plaintiff appeals the decision of the district court that denied his request for an injunction.

Facts: Plaintiff’s position is that his conduct did not warrant discipline and there are no grounds for a hearing to determine if he should be dismissed. His position has two parts. First, his conduct was “within his competence as a teacher, as a matter of academic freedom, whether the defendants approved or not.” Secondly, he was not given adequate prior warning that his actions would be considered improper.

Defendants argue that academic freedom is limited to proper classroom materials as determined by the school committee “in light of pertinent condi- tions.” They cite the age of the students in this case.

Findings: The order of the district court denying an injunction is reversed and the case is remanded for further proceedings.

Rationale: In the opinion given by Chief Judge Aldrich, the court states that the article in which the offensive language was used is in no way porno- graphic. “The article is scholarly and thought provoking. The use of the word is important to the development of the thesis and the conclusions of the author. The court doesn’t think the word is unknown or offensive to the senior students and believe that its use is disturbing only to their parents. If students need to be protected from such language then they fear for their futures.”

To the charge that the use of such material would undermine public confidence, the court cites Ginsberg v. New York, which establishes that what is read or said to students is not to be determined by adult obscenity stan- dards. However, it does not find high school seniors devoid of all discrimina- tion or resistance and the offensiveness must be dependent on the circum- stances of its use.

The justices disagree with the findings of the district court when they cite Parker v. Board of Education. The teacher in this case was not dismissed; his complaint was that he was not renewed. They also quote Justice Frankfurter in Wieman v. Updegraff, “Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially cultivate and practice.”

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The justices state that it is probable that the plaintiff will prevail on the charge of lack of notice as the school library contains no fewer than five books containing the offensive word.

Finally, they disagree with the district finding that no irreparable injury is involved because the plaintiff may recover money damages. They state, “Ac- ademic freedom is not preserved by compulsory retirement, even at full pay.”

Simonetti v. School District of Philadelphia

Superior Court of Pennsylvania, 1982 308 Pa. Super. 555, 454 A. 2d 1038

[Richard Simonetti, a minor, by his parent and natural guardian, Alberta Simonetti, and Alberta Simonetti, in her own right v. School District of Philadelphia, Appellant]

Topic: Whether a teacher’s momentary absence from a classroom consti- tutes negligence.

Facts: Richard Simonetti, a fifth-grade student, returned to the classroom from recess and was struck in the left eye by a pencil that had been propelled out of the hand of a classmate when he tripped. The teacher, an employee of the School District of Philadelphia, was outside the classroom, standing at the door, when Simonetti was injured. There she was engaged in monitoring the return of her students from recess and talking with another teacher. The student who dropped or threw the pencil and two other students had been required to remain in the classroom during recess as punishment for misbe- havior at breakfast. They had been talking with the teacher during the recess period and were instructed to take their seats when the teacher stepped out- side the classroom to supervise the return of the students from recess.

Simonetti filed action against the school district with the Court of Com- mon Pleas of Philadelphia by contending that the teacher had been negligent in failing to provide adequate classroom supervision. The case was tried without a jury, and damages of $15,000 were awarded to the minor plaintiff and his mother. An appeal followed this verdict.

Findings of the Superior Court of Pennsylvania: The Superior Court of Pennsylvania reversed the decision of the Court of Common Pleas of Phila- delphia. Citing facts from several precedent cases, the court stated that to require the teacher to anticipate the events that occurred while the teacher was outside the classroom door would be to hold that a teacher is required to anticipate the myriad of unexpected acts that occur daily in classrooms in every school in the land. They agreed that this is not the law and perceived no good reason for imposing such an absolute standard on teachers and school districts.

Rationale: Majority opinion, Judge Wieand. “The following are dominant facts that mark and control the confines of the Court’s decision: (1) ‘It is

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common knowledge that children may indulge in horseplay. They may throw a pencil, shoot a paper clip or snap a rubber band when a teacher is absent or turns his or her back.’ (2) The teacher attempted to guard against any horse- play by instructing the three students who were in the classroom to return to their seats and to remain there. (3) Even though the three students who remained in the classroom during recess were being punished for unrelated misconduct at breakfast, there is no evidence that they were hellions who required constant custodial care. The Court applied the following cases as a proper standard of review:

“(1) Bottorf v. Waltz, 245 Pa. Super. 139,369 A.2d 332 (1976). In a case in which a student had been burned when melted wax was spilled on his back, this Court defined the standard of care required of a teacher as follows: ‘What constitutes proper supervision depends largely upon the circumstances attending the event. Thus, the fact that supervisory personnel present when an accident occurs could conceivably have prevented its occurrence does not necessarily render the school agency liable if the supervisory personnel was competent and acted reasonably under all the circumstances.’

“The Court went on to say: ‘There is no liability predicated on lack or insufficiency of supervision where the event in connection with which the injury occurred was not reasonably foreseeable . . . The courts frequently state that a teacher is not required to anticipate the myriad of unexpected acts which occur daily in and about school, to guard against all dangers inherent in the rashness of children, or to watch all movements of children.”

“(2) Ohman v. Board of Education of City of New York, 300 N.Y. 306, 90 N.E.2d 474 (1949). Here a thirteen-year-old student sustained injury when struck in the eye by a pencil. The pencil had been thrown by one student to another, and when the boy for whom it was intended ducked, the pencil hit the minor plaintiff. The accident occurred while the teacher in charge of the classroom was temporarily absent for the purpose of sorting and storing supplies in a corridor closet. The court held that the teacher’s absence from the room was insufficient to impose liability upon the Board of Education, saying:

“‘A teacher may be charged only with reasonable care such as a parent of ordinary prudence would exercise under comparable circumstances. Proper supervision depends largely on the circumstances attending the event but so far as the cases indicate there has been no departure from the usual rules of negligence.’

“(3) Swaitkowski v. Board of Education of the City of Buffalo, 36 A.D.2d 783 (1971). The Court held that the Board of Education was not liable for

injuries sustained by a student who, upon returning to his seat, sat on the point of a pencil placed on the seat by another student while the teacher was absent from the classroom for a short period to assist another teacher locate books in a bookroom 10, feet away with the doors open.

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“(4) Morris v. Ortiz, 103 Ariz. 199, 437 P.2d 652, 35 A.L.R.3d 747 (1968). A student in an auto mechanics class was injured when another student jumped on a car top which the former student was holding. The trial court directed a verdict in favor of the teacher and school district. “In affirm- ing, the Arizona Supreme Court said: ‘To hold that the teacher had to antici- pate the student’s act and somehow circumvent it is to say that it is the responsibility of a school teacher to anticipate the myriad of unexpected acts which occur daily in and about schools and school premises, the penalty for failure of which would be financial responsibility in negligence. We do not think that either the teacher or the district should be subject to such harass- ment nor is there an invocable legal doctrine or principle which can lead to such an absurd result.’

“(5) Butler v. District of Columbia, 417 F.2d 1150 (D.C.Cir.1969). A seventh grade student was struck in the left eye by a sharp piece of metal when he entered a printing classroom. The teacher was then absent because he had been assigned as a hall or cafeteria supervisor. The Plaintiff’s case was based on alleged negligent supervision of the classroom after the teacher and principal had prior knowledge that the ‘horseplay’ and throwing had occurred in the classroom. In holding that there could be no recovery, the Court took note of the district’s dilemma of balancing ‘the need for a teacher to supervise several hundred students milling about the corridors and the cafeteria against the need to supervise fourteen students in a certain class- room for a period of time.’

“From these decisions it can safely be concluded that momentary absence from a classroom is not negligence. This is particularly true where the ab- sence was for the authorized and compelling reason of monitoring the return of about thirty students from recess. The teacher could not have been at two places at the same time. It can also be said that it was not negligence for the teacher to give priority to an entire class of approximately thirty students returning from recess rather than to remain in the classroom to supervise three students who had been required to stay in the classroom during the recess period.”

Dissenting Opinion, Judge Cirillo: “More emphasis is to be placed on three components of the proper standard of review: (1) the fact that the teacher knew the behavior-problem children were in the room while she monitored the students returning from recess, (2) that the teacher was dis- tracted by holding a conversation with fellow teachers in the hallway, and (3) the teacher failed to take a position at the doorway where she would have been in view of both the students in the room as well as those returning from recess.

“The teacher may have been authorized to stand outside the classroom to monitor those coming in from recess, but this did not relieve her of the duty to supervise the children as they entered the classroom, especially when she

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knew the behavior-problem children were in the room; nor did it free her to strike up conversations with fellow teachers in the hallway. Unlike the cases cited by the majority, the teacher could have done both tasks, i.e., monitor those in the hallway and watch those in the classroom at the same time by positioning herself in the doorway so she had a view of the inside of the classroom and that of the hallway. Moreover, the distraction of talking to other teachers when she was supposed to be supervising her thirty students is another factor, which should be considered in determining whether there was sufficient evidence for the trial court to find negligence. These additional facts, which are absent in the cases relied upon by the majority, are sufficient to qualify the ‘momentary absence’ of the teacher and support a finding of negligence. Therefore, I would affirm the finding of negligence by the lower court because it was supported by competent evidence.”

Note: The dissenting opinion contends that the teacher was negligent because she positioned herself so that she could neither see nor hear what was transpiring in the classroom. This is not in accordance with the facts found by the trial judge and recited in his opinion. Even the minor plaintiff testified that the teacher was but a few feet from the classroom door. The trial judge did find that the boy with the pencil had been running in the classroom. Specifically, he was running up the aisle at the time the minor plaintiff was struck in the eye with the pencil.

Shelley Evans-Marshall, Plaintiff-Appellant, v. Board of Education of the Tipp City Exempted Village School District

Charles W. Wray and John T. Zigler, Defendants-Appellees No. 09-3775; Decided, October 21, 2010 Before Siler and Sutton, circuit judges, and Cleland, district judge

[On brief: Lynnette Dinkler, Jamey T. Pregon, Dinkler Pregon LLC, Dayton, Ohio, for Appellees. Shelley Evans-Marshall, Humble, Texas, pro se.]

Opinion: “Does a public high school teacher have a First (and Fourteenth) Amendment right ‘to select books and methods of instruction for use in the classroom without interference from public officials’? Yes, says the teacher, Shelley Evans-Marshall. No, says the Tipp City Board of Education. Because the right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made ‘pursuant to’ their official duties, Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), we affirm the judgment rejecting this claim as a matter of law.”

“This free-speech-retaliation case implicates two competing intuitions. On the one side, doesn’t a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against? On the other side, doesn’t a school board have the final

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say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.

“In free-speech retaliation cases arising in the employment context, we ask three questions: Was the individual involved in ‘constitutionally pro- tected’ activity—here activity protected by the free speech clause of the First Amendment? Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Would the employer’s conduct discourage individuals of ‘ordinary firmness’ from continuing to do what they were doing? Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.1998); see Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982). Was the employee’s exercise of constitutionally pro- tected rights ‘a motivating factor’ behind the employer’s conduct? Mt. Healthy, 429 U.S. at 287. The claimant must win each point to prevail.

The first question requires some elaboration. Three Supreme Court cases define the contours of the free-speech rights of public employees.

“The ‘matters of public concern’ requirement. The First Amendment pro- tects the speech of employees only when it involves ‘matters of public con- cern.’ Connick v. Myers, 461 U.S. 138, 143 (1983). In Connick, an assistant district attorney, after learning that her supervisor planned to transfer her, solicited information from her colleagues about the office’s transfer policy, about office morale and about whether supervisors had pressured anyone to participate in political campaigning. Id. at 141. When the supervisor fired her for refusing to accept the transfer, she sued, alleging retaliation against pro- tected speech, namely her initiation of the survey. Id. In rejecting her claim, the Court explained that not all employee speech is protected, only speech that ‘fairly [may be] considered as relating to’ issues ‘of political, social, or other concern to the community.’ Id. at 146. When, by contrast, an employ- ee’s speech does not relate to a matter of public concern, public officials enjoy ‘wide latitude’ in responding to it without ‘intrusive oversight by the judiciary in the name of the First Amendment.’ Id.

“The ‘balancing’ requirement. If the employee establishes that her speech touches ‘matters of public concern,’ a balancing test determines whether the employee or the employer wins. See Pickering, 391 U.S. at 568. In Picker- ing, the Court considered the claim of a high school teacher whom the princi- pal fired after the teacher wrote a letter to the local newspaper, criticizing the school board’s budgetary decisions. Id. at 564. In resolving the claim, the Court ‘balance[d] the interests of the teacher, as a citizen, in commenting upon matters of public concern’ against ‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ Id. at 568. Reasoning that there was no relationship between the contents of the letter and the ‘proper performance of [the teach- er’s] daily duties in the classroom,’ the Court ruled for the teacher, conclud- ing that the school board’s interests did not outweigh his desire to ‘contribute to public debate’ like any other citizen. Id. at 572–73.

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“The ‘pursuant to’ requirement. In the last case in the trilogy, a prosecutor reviewed a private complaint that a police officer’s affidavit used to obtain a search warrant contained several misrepresentations. Garcetti, 547 U.S. at 413–14. After confirming that the affidavit contained serious falsehoods, the prosecutor wrote a memo to his superiors about his findings, recommended that the office dismiss the case and eventually testified to the same effect at a hearing to suppress the evidence discovered during the search. Id. at 414–15. In the aftermath of these and other actions, the prosecutor claimed that the office retaliated against him by transferring him to another courthouse and by denying him a promotion. Id. at 415. In rejecting his free-speech claim, the Court did not deny that the prosecutor’s speech related to a matter of ‘public concern’ under Connick, and it did not take on the lower court’s reasoning that Pickering balancing favored the employee. It instead concluded that the First Amendment did not apply. ‘The controlling factor,’ the Court reasoned, ‘is that his expressions were made pursuant to his duties as a calendar depu- ty,’ making the relevant speaker the government entity, not the individual. Id. at 421 (emphasis added). ‘We hold that when public employees make state- ments pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insu- late their communications from employer discipline.’ Id.

“A First Amendment claimant must satisfy each of these requirements: the Connick ‘matter of public concern’ requirement, the Pickering ‘balanc- ing’ requirement and the Garcetti ‘pursuant to’ requirement. Evans-Marshall clears the first two of these hurdles but not the third.

“The content of Evans-Marshall’s speech ‘relat[ed] to matter[s] of politi- cal, social, or other concern to the community.’ Connick, 461 U.S. at 146. A teacher’s curricular speech, we have said on several occasions, ordinarily covers these matters. See Evans-Marshall I, 428 F.3d at 230–31; Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1052 (6th Cir.2001); Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 679 (6th Cir.2001). ‘[T]he essence of a teacher’s role is to prepare students for their place in society as responsible citizens,’ Hardy, 260 F.3d at 679, and the teacher that can do that without covering topics of public concern is rare indeed, perhaps non-existent. Look no further than the November 2001 meeting of the school board to confirm the point. Members of the community had a lot to say about the topics discussed in Evans-Marshall’s class, and they went to the school board meet- ing to say it. That large segments of the community disagreed with Evans- Marshall’s speech—her class assignments and teaching methods—is beside the point. The question is whether the topics discussed are ‘of concern’ to the community, Connick, 461 U.S. at 146, not whether the community approved of the teacher’s position on each topic. On this summary-judgment record, Evans-Marshall’s curricular speech passes the Connick ‘matter of public con- cern’ test, as the district court correctly determined.

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“Evans-Marshall also satisfies Pickering ‘balancing’—that her ‘interests as a citizen, in commenting upon matters of public concern’ through her in- class speech outweighed the school board’s ‘interest, as an employer, in promoting the efficiency of the public services it performs.’ Pickering, 391 U.S. at 568. As the district court correctly concluded, a legitimate factual dispute exists over whether Evans-Marshall’s interest in teaching Siddhartha (and in making other curricular choices) overshadowed any interest the school board might claim in disciplining her for doing so. Although the school board has ‘the ability to select and require adherence to a stated curriculum,’ R.52 at 26, the court concluded, its interest in enforcing curricu- lar standards is severely undermined if it disciplines a teacher for teaching a book the board ‘had purchased and made available to teachers as an optional text,’ id. at 40–41. And although the court did not find Evans-Marshall’s interest in ‘select[ing] materials to supplement the board-chosen textbooks and the methods for teaching’ to be compelling, id. at 32, that interest out- weighed the school’s near-zero interest in disciplining her for teaching a book it had purchased, id. at 41. We agree—for many of the same reasons identified in Evans-Marshall I. See 428 F.3d at 231–32.

“After addressing the Pickering point, however, the district court con- cluded that Evans-Marshall stumbled over causation. The court did not be- lieve that Evans-Marshall could show that her exercise of free speech rights was ‘a motivating factor’ behind the school board’s conduct. See Mt. Healthy, 429 U.S. at 287. That is a harder point to sell. And a brief account- ing of the evidence and the chronology of events shows why.

“Before any parents complained about her reading assignments and class- room discussions, Evans-Marshall had never received a negative perfor- mance review. Dozens of parents flooded the school board’s November 2001 meeting, and many complained about Evans-Marshall’s teaching. One parent told the school board that it ‘should be embarrassed’ about the book she was teaching. R.46 at 1:32:20. Principal Wray thereafter told Evans-Marshall that she would have to clear any potentially controversial material with him. He later told Evans-Marshall that he ‘intended to rei[n] in’ her classroom discus- sions. R.41 at 24–25. In December 2001, Evans-Marshall complained to Superintendent Zigler about Wray’s behavior. And when the semester re- sumed in January 2002, Wray told Evans-Marshall that he would ‘see what [he could] come up with for [her] evaluations,’ R.31-1 at 52–53, after which he gave her negative performance reviews for the first time. Only a short time later, the board voted not to renew her contract. To deny a causal relationship between Evans-Marshall’s speech and the board’s actions does not come to grips with this sequence of events or with the imperative at this stage of the litigation that we draw all inferences in favor of the nonmoving party: the teacher. Evans-Marshall satisfies Pickering balancing and has shown that her teaching choices caused the school board to fire her.

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“Evans-Marshall, however, cannot overcome Garcetti. When government employees speak ‘pursuant to their official duties,’ Garcetti teaches that they are ‘not speaking as citizens for First Amendment purposes.’ 547 U.S. at 421. Any dispute over the board’s motivations, Pickering balancing or the ‘public concerns’ of her speech under Connick is beside the point if, as Evans-Marshall does not dispute, she made her curricular and pedagogical choices in connection with her official duties as a teacher.

“In the light cast by Garcetti, it is clear that the First Amendment does not generally ‘insulate’ Evans-Marshall ‘from employer discipline,’ Garcetti, 547 U.S. at 421, even discipline prompted by her curricular and pedagogical choices and even if it otherwise appears (at least on summary judgment) that the school administrators treated her shabbily. 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.’ Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir.2007). And if it is the school board that hires that speech, it can surely ‘regulate the content of what is or is not expressed,’ Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995), what is expressed in other words on its behalf. Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom.

“It is true that teachers, like students, do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). But that does not transform them into the employee and employer when it comes to decid- ing what, when and how English is taught to fifteen-year-old students. Con- sider the difference between the speech of Evans-Marshall and Marvin Pick- ering, teachers both. When Pickering sent a letter to the local newspaper criticizing the school board, he said something that any citizen has a right to say, and he did it on his own time and in his own name, not on the school’s time or in its name. Yet when Evans-Marshall taught 9th grade English, she did something she was hired (and paid) to do, something she could not have done but for the board’s decision to hire her as a public school teacher. As with any other individual in the community, she had no more free-speech right to dictate the school’s curriculum than she had to obtain a platform—a teaching position—in the first instance for communicating her preferred list of books and teaching methods. ‘[N]o relevant analogue’ exists between her in-class curricular speech and speech by private citizens. Garcetti, 547 U.S. at 424.

“Teachers are not everyday citizens, Evans-Marshall insists, and they have a right ‘to select books and methods of instruction for use in the class- room without interference from public officials.’ R.1 ¶ 32. But that is not

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what Ohio law provides or the First Amendment requires. Start with Ohio law. Under it, ‘[t]he board of education of each city ‘shall prescribe a curric- ulum.’ O.R.C. § 3313.60(A). State law gives elected officials—the school board—not teachers, not the chair of a department, not the principal, not even the superintendent, responsibility over the curriculum. This is an accountabil- ity measure, pure and simple, one that ensures the citizens of a community have a say over a matter of considerable importance to many of them—their children’s education—by giving them control over membership on the board.

“The First Amendment does not ban this policy choice or this account- ability measure. The Constitution does not prohibit a State from creating elected school boards and from placing responsibility for the curriculum of each school district in the hands of each board. Teachers no doubt are ‘re- quired to speak or write’ and otherwise express themselves, Garcetti, 547 U.S. at 422, but this does not make them ‘sovereign[s] unto [themselves],’ Parate v. Isibor, 868 F.2d 821, 827 (6th Cir.1989). ‘The curricular choices of the schools should be presumptively their own—the fact that such choices arouse deep feelings argues strongly for democratic means of reaching them.’ Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 371–72 (4th Cir.1998) (en banc) (Wilkinson, C.J., concurring).

“How at any rate would a contrary approach work? If one teacher, Evans- Marshall, has a First Amendment right ‘to select books and methods of instruction for use in the classroom,’ R.1 32, so presumably do other teach- ers. Evans-Marshall may wish to teach Siddhartha in the first unit of the school year in a certain way, but the chair of the English department may wish to use the limited time in a school year to teach A Tale of Two Cities at that stage of the year. Maybe the head of the upper school has something else in mind. When educators disagree over what should be assigned, as is surely bound to happen if each of them has a First Amendment right to influence the curriculum, whose free-speech rights win? Why indeed doesn’t the principal, Wray, have a right to defend the discharge on the ground that he was merely exercising his First Amendment rights in rejecting Evans-Marshall’s curricu- lar choices and methods of teaching? Placing the First Amendment’s stamp of approval on these kinds of debates not only would ‘demand permanent judicial intervention in the conduct of governmental operations,’ Garcetti, 547 U.S. at 423, but it also would transform run-of-the-mill curricular dis- putes into constitutional stalemates.

“That is not the only problem. What employer discipline arising from an employee’s manner of teaching—choices of books and the methods of teach- ing them—does not implicate speech? Could a teacher respond to a princi- pal’s insistence that she discuss certain materials by claiming that it improp- erly compels speech? Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Could a teacher continue to assign materials that members of the community perceive as racially insensitive even after the principal tells her

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not to? Could a teacher raise a controversial topic (say, the virtues of one theory of government over another or the virtues of intelligent design) after a principal has told her not to? Could a teacher introduce mature sexual themes to fifteen-year-olds when discussing a work of literature after a principal has told her not to? And ‘[d]oes a music teacher retain veto power over that most controversial of school productions—the Holiday Concert?’ Evans-Marshall I, 428 F.3d at 237–38 (Sutton, J., concurring).

“Because ‘one man’s vulgarity is another’s lyric,’ Cohen v. California, 403 U.S. 15, 25 (1971), or, as one school board member put the point at the November 2001 meeting, ‘What you might find offensive, I might not,’ R.46 at 1:41:40, parents long have demanded that school boards control the curric- ulum and the ways of teaching it to their impressionable children. Permitting federal courts to distinguish classroom vulgarities from lyrics or to pick sides on how to teach Siddhartha not only is a recipe for disenfranchising the 9,000 or so members of the Tipp City community but also tests judicial competence. ‘If even the most happily married parents cannot agree on what and how their own children should be taught, as [we] suspect is not infre- quently the case, what leads anyone to think the federal judiciary can answer these questions?’ Evans-Marshall I, 428 F.3d at 237-38 (Sutton, J., concur- ring).

“The key insight of Garcetti is that the First Amendment has nothing to say about these kinds of decisions. An employee does not lose ‘any liberties the employee might have enjoyed as a private citizen’ by signing on to work for the government, but by the same token, the government, just like a private employer, retains ‘control over what the employer itself has commissioned or created’: the employee’s job. Garcetti, 547 U.S. at 422. And that insight has particular resonance in the context of public education. Every child in Ohio must attend school, see O.R.C. § 3321.02, providing public school teachers with a captive audience for their in-class speech, see Mayer, 474 F.3d at 479, and providing a compelling reason for putting curricular choices in the hands of ‘someone [they] can vote out of office,’ id. at 479–80, or who is otherwise democratically accountable, see O.R.C. § 3311.71 (elected officials and other community institutions appoint school board members in certain municipal school districts).

“In concluding that the First Amendment does not protect primary and secondary school teachers’ in-class curricular speech, we have considerable company. The Seventh Circuit invoked Garcetti in concluding that the cur- ricular and pedagogical choices of primary and secondary school teachers exceed the reach of the First Amendment. Mayer, 474 F.3d at 480. The Fourth Circuit has not applied Garcetti to teachers’ in-class speech, see Lee v. York County Sch. Div., 484 F.3d 687, 694 n. 11 (4th Cir.2007), and is sometimes cited as creating a division among the circuits, see, e.g., Gorum v. Sessoms, 561 F.3d 179, 186 n. 6 (3d Cir.2009). But that is because the Fourth

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Circuit disposed of the teacher’s retaliation claim based on pre-Garcetti prec- edent, namely Connick, holding that ‘speech that occurs within a compulsory classroom setting’ ‘does not constitute speech on a matter of public concern’ when it is ‘curricular in nature.’ 484 F.3d at 695, 697. The Fourth Circuit’s approach changes nothing here: A teacher’s curricular and pedagogical choices are categorically unprotected, whether under Connick or Garcetti.

“The Third Circuit also has declined to resolve the applicability of Gar- cetti to this sort of speech, see Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 171 n. 13 (3d Cir.2008), but that too makes no difference. Its pre-Garcetti cases hold that, ‘although [a teacher] has a right to advocate outside of the classroom for the use of certain curriculum materials, he does not have a right to use those materials in the classroom.’ Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 491 (3d Cir.1998) (Alito, J.). The Tenth Circuit has applied Garcetti to a school teacher’s speech about curriculum and peda- gogy, even when made outside the classroom, see Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1204 (10th Cir.2007), but has not addressed in-class curricular speech. The Second Circuit determined, in an unpublished decision, that it need not resolve whether a teacher’s in-class speech is governed by Garcetti or by its earlier cases applying the ‘reason- ably related to legitimate pedagogical concerns’ standard of Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988). See Panse v. East- wood, 303 F. App’x 933, 935 (2d Cir.2008). Other courts of appeals, includ- ing this one, have applied Garcetti in rejecting school employees’ speech claims, though not in the context of curricular and pedagogical choices. See, e.g., Fox v. Traverse City Area Pub. Sch. Bd. of Educ., 605 F.3d 345, 349 (6th Cir.2010); Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir.2007); Gilder-Lucas v. Elmore County Bd. of Educ., 186 F. App’x 885, 887 (11th Cir.2006). The common thread through all of these cases is that, when it comes to in-class curricular speech at the primary or secondary school level, no other court of appeals has held that such speech is protected by the First Amendment.

“Our decision also respects Sixth Circuit authority. In Cockrel and in our initial decision in this case, we held that a school teacher’s curricular and pedagogical choices (1) are ‘speech,’ (2) touch on ‘matters of public con- cern’ and (3) may satisfy Pickering balancing depending on the circum- stances developed in discovery or at trial. We do not disturb those holdings and indeed have ruled for the plaintiff on each one of these points today.

“Not one of these Sixth Circuit cases, however, addressed whether in- class curricular speech survives the threshold inquiry announced in Garcetti: whether the speech was ‘pursuant to’ the claimant’s official duties. 547 U.S. at 421. How could they? Garcetti came down after both decisions and estab- lished a new threshold requirement in this area. Evans-Marshall’s failure to satisfy this requirement governs us here. ‘[A] plaintiff may not run home

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before she reaches first base.’ Weathers v. Lafayette Parish Sch. Bd., 520 F.Supp.2d 827, 837 (W.D.La.2007).

“Nor can Evans-Marshall sidestep this conclusion on the theory that Gar- cetti does not apply. In his dissent in Garcetti, as Evans-Marshall points out, Justice Souter raised concerns about the applicability of the decision to ‘aca- demic freedom in public colleges and universities.’ 547 U.S. at 438 (Souter, J., dissenting). The majority disclaimed any intent to resolve the point. See id. at 425 (majority opinion) (‘Justice Souter suggests today’s decision may have important ramifications for academic freedom. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching’).

“Garcetti’s caveat offers no refuge to Evans-Marshall. She is not a teach- er at a ‘public college’ or ‘university’ and thus falls outside of the group the dissent wished to protect. The concept of ‘academic freedom,’ moreover, does not readily apply to in-class curricular speech at the high school level. As a cultural and a legal principle, academic freedom ‘was conceived and implemented in the university’ out of concern for ‘teachers who are also researchers or scholars—work not generally expected of elementary and sec- ondary school teachers.’ J. Peter Byrne, ‘Academic Freedom: A ‘Special Concern of the First Amendment,’’ 99 Yale L.J. 251, 288 n. 137 (1989). ‘[U]niversities occupy a special niche in our constitutional tradition’ and the constitutional rules applicable in higher education do not necessarily apply in primary and secondary schools, where students generally do not choose whether or where they will attend school. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 724-25 (2007).

“Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teacher’s curricular and pedagogical choices from the school board’s over- sight, as opposed to the teacher’s right to speak and write publicly about academic issues outside of the classroom. ‘[I]t is the educational institution that has a right to academic freedom, not the individual teacher.’ Borden, 523 F.3d at 172 n. 14.

“Academic freedom implicates ‘[t]he freedom of a university to make its own judgments as to education,’ Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.), requiring ‘deference to a university’s academic decisions,’ Grutter v. Bollinger, 539 U.S. 306, 328 (2003). See Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., con- curring). In the context of in-class curricular speech, this court has already said in the university arena that a teacher’s invocation of academic freedom does not warrant judicial intrusion upon an educational institution’s deci- sions: ‘The First Amendment concept of academic freedom does not require that a nontenured professor be made a sovereign unto himself.’ Parate, 868

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F.2d at 827. A school ‘may constitutionally choose not to renew the contract of a nontenured professor’ when that professor’s ‘pedagogical attitude and teaching methods do not conform to institutional standards.’ Id. Just so here.

“For these reasons, we affirm the judgment of the district court. “Sutton, Circuit Judge”

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