Academic journal article Harvard Law Review

(Free Speech Rights in Employer Retaliation)

Academic journal article Harvard Law Review

(Free Speech Rights in Employer Retaliation)

Article excerpt

CONSTITUTIONAL LAW--FIRST AMENDMENT--SIXTH CIRCUIT HOLDS THAT PRIMARY AND SECONDARY SCHOOL TEACHERS' CURRICULAR DECISIONS ARE NOT ENTITLED TO FREE SPEECH PROTECTION.--Evans-Marshall v. Board of Education, 624 F.3d 332 (6th Cir. 2010).

In Pickering v. Board of Education, (1) the Supreme Court crafted a balancing test to determine whether a public employer violates the First Amendment when it retaliates against an employee who comments on matters that are relevant to the public. (2) The Court added a threshold inquiry to this analysis in Garcetti v. Ceballos, (3) in which it held that the First Amendment does not apply to statements made by public employees "pursuant to their official duties." (4) However, the Garcetti Court declined to address whether this additional consideration would apply to "speech related to scholarship or teaching." (5) Recently, in Evans-Marshall v. Board of Education, (6) the Sixth Circuit applied Garcetti's "pursuant to" test in the education context and held that public officials' interference with a high school teacher's curricular decisions did not violate the First Amendment. (7) In doing so, the court ignored a key institutional feature that differentiates teachers from other public sector employees--the presence of students as a third institutional actor, alongside teachers and administrators--and overlooked the Supreme Court's repeated endorsement of balancing tests as the appropriate free speech inquiry in comparable education cases. As a result, the court neglected the interest that students possess in being exposed to the relatively unconstrained speech of teachers. The Sixth Circuit should have recognized, consistent with the Supreme Court's suggestion in Garcetti, that the test in that case does not apply to the unique context of education and should have borrowed elements from several education-related Supreme Court cases to craft a new balancing test for teachers' curricular decisions.

In 2000, the Tipp City school board hired Shelley Evans-Marshall to teach English at Tipp High School and to advise the school's literary magazine. (8) During the fall semester of her second year, Evans-Marshall permitted two groups of students in her ninth-grade English class to lead an in-class discussion regarding why the book Heather Has Two Mommies (9) appeared on the American Library Association's list "The 100 Most Frequently Challenged Books." (10) Shortly thereafter, Evans-Marshall asked her class to read Siddhartha, (11) which explores themes of "spirituality, Buddhism, romantic relationships, personal growth and familial relationships." (12) Dozens of parents complained about Evans-Marshall's teaching decisions at school board meetings in October and November 2001. (13) These and similar instances (14) led the school's principal, Charles Wray, to give Evans-Marshall a poor performance evaluation in which he "criticized [her] attitude and demeanor as well as her '[u]se of material that is pushing the limits of community standards.'" (15) Wray also recommended that the school board not renew her teaching contract, a recommendation that the school board approved on March 25, 2002. (16)

In March 2003, Evans-Marshall filed suit, alleging that the school board, Wray, and the district's superintendent violated 42 U.S.C. [section] 1983 by firing her in retaliation for exercising her First Amendment right to make "curricular and pedagogical choices" (17) "without interference from public officials." (18) At the conclusion of discovery, the defendants filed a motion for summary judgment, which the district court granted. (19) The court employed a three-factor test to determine whether Evans-Marshall had established a prima facie case of First Amendment retaliation by showing (1) that she "was engaged in a constitutionally protected activity," (2) that the defendants' action caused her an injury that would likely have a chilling effect on an ordinary person, and (3) that the defendants' action was "a response to the exercise of [her] constitutional rights. …

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