RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0334p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
SHELLEY EVANS-MARSHALL,
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No. 09-3775
v.
,
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BOARD OF EDUCATION OF THE TIPP CITY
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EXEMPTED VILLAGE SCHOOL DISTRICT;
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CHARLES W. WRAY; JOHN T. ZIGLER,
Defendants-Appellees. -
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Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 03-00091—Walter H. Rice, District Judge.
Decided and Filed: October 21, 2010
Before: SILER and SUTTON, Circuit Judges; CLELAND, District Judge.*
_________________
COUNSEL
ON BRIEF: Lynnette Dinkler, Jamey T. Pregon, DINKLER PREGON LLC, Dayton,
Ohio, for Appellees. Shelley Evans-Marshall, Humble, Texas, pro se.
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OPINION
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SUTTON, Circuit Judge. 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
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
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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.
I.
In 2000, the Tipp City Board of Education hired Evans-Marshall to teach English
and to supervise Tippecanoe High School’s literary magazine, BirchBark, for the
2000–2001 school year. The Board renewed her contract for the 2001–2002 school year,
when Evans-Marshall taught English to 9th and 11th grade students and a creative
writing course to 11th and 12th grade students. At the beginning of the fall semester,
Evans-Marshall assigned Ray Bradbury’s Fahrenheit 451 to her 9th graders. To the end
of exploring the book’s theme of government censorship, she distributed a list compiled
by the American Library Association of the “100 Most Frequently Challenged Books.”
Students divided into groups, and Evans-Marshall asked each group to pick a book from
the list, to investigate the reasons why the book was challenged and to lead an in-class
debate about the book. Two groups chose Heather Has Two Mommies by Lesléa
Newman.
A parent complained about Heather Has Two Mommies, and the principal,
Charles Wray, asked Evans-Marshall to tell the students to choose a different book. She
complied, explaining to her class that “they were in a unique position to . . . use this
experience as source material for their debate because they were in the . . . position of
having actually experienced censorship in preparing to debate censorship.” R.31-2 at
342–43. After the class completed the Fahrenheit 451 unit, Evans-Marshall assigned
Siddhartha by Hermann Hesse and used it as the basis for in-class discussions about
“spirituality, Buddhism, romantic relationships, personal growth, [and] familial
relationships.” R.31-1 at 101.
At the October 2001 meeting of the school board, twenty-five or so parents
complained about the curricular choices in the schools, including Siddhartha and the
book-censorship assignment. The next day, Principal Wray called a meeting of the
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English department and told Evans-Marshall that she was “on the hot seat.” R.31-1 at
64. Nearly 100 parents, as well as the local news media, attended the board’s November
meeting. For over an hour, parents expressed concerns about books in the curriculum
and in the school libraries. While the parents mentioned many books, they raised
particular objections to the materials in Evans-Marshall’s classroom and her teaching
methods. Superintendent John Zigler explained that the school board had purchased
many of the materials, including Siddhartha, several years before, making it difficult to
criticize Evans-Marshall for teaching a book the school board had bought. “You should
be embarrassed,” one parent responded, referring to the explicit language and sexual
themes in the book. R.46 at 1:32:20. Another parent complained that she had asked for
an alternative assignment—instead of Siddhartha—and “was given three books,” two
of which “were for a four-to-eight year old.” R.46 at 1:33:40. “I’m not going to put my
daughter through this,” the parent added, explaining that she thought Evans-Marshall
was “punish[ing] my daughter.” R.46 at 1:33:40. A group of parents presented the
board with a 500-signature petition calling for “decency and excellence” in the
classroom. R.46 at 0:29:00, 0:55:00.
The meeting was not one-sided. A member of the board—a parent
himself—warned that the school district’s policies about potentially objectionable
material “have to be well thought out because what you might find offensive, I might
not.” R.46 at 1:41:40. Another board member reminded the group that, as elected
officials, the board “must walk the middle of the road to some extent,” even if the
community might “err . . . on the conservative side.” R.46 at 0:20:45. And a parent who
made a formal statement said that he “[did not] condone” the behavior of some of the
more vocal parents and trusted that school officials “want what’s best for our kids.”
R.46 at 0:22:00.
The matter did not end there. In teaching creative writing, Evans-Marshall
maintained a file of student writing samples that she shared with students who asked for
additional guidance on assignments. Running low on copies of some of the samples, she
sent three of them to support staff to be copied. A member of the copy room staff,
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apparently not a friend, showed the writing samples to Wray, saying he “ought to read
this.” R.33-1 at 76. After reading the papers, Wray called Evans-Marshall to his office.
When she arrived, he waved two of the writing samples in his hand, one a first-hand
account of a rape, the other a story about a young boy who murdered a priest and
desecrated a church. “[A]re you going to use these in class after everything that’s
happened?” he shouted. R.31-1 at 84. Evans-Marshall explained that the writing
samples were not intended for in-class distribution and that she would refrain from
sharing the papers if he wanted. Wray said that he did not like the materials she was
using in her classroom or the themes of her in-class discussions and that he “intended
to rei[n] it in.” R.41 at 24–25.
The two soon had another argument in the school library about Evans-Marshall’s
plans to give a final exam involving group discussions and student self-evaluations.
Evans-Marshall asked Wray to give her a model exam so she could “give [him] back
exactly what [he] want[ed],” R.31-1 at 43, prompting Wray to call her a “smart a—,” id.
at 41–42. The next day, Evans-Marshall complained to Superintendent Zigler about
Wray’s behavior. Zigler told her to meet with Wray after the semester break to work
things out and offered to speak with Wray in the meantime. He also said that she should
feel free to file a formal grievance if things had not been worked out by January.
Things did not work out by January. Wray and Evans-Marshall talked, but they
fell back into the same channels of disagreement. Evans-Marshall asked whether there
was anything aside from her curricular decisions that bothered Wray. “I’ll see what
other issues I can come up with,” Wray responded, “for your evaluation next week.”
R.31-1 at 52–53. Wray’s evaluations criticized Evans-Marshall’s attitude and demeanor
as well as her “[u]se of material that is pushing the limits of community standards.”
R.31-5 at 38–39. Evans-Marshall filed written objections to Wray’s evaluations and a
grievance with Superintendent Zigler.
At its March 2002 meeting, the school board voted unanimously not to renew
Evans-Marshall’s contract. She requested an explanation, and the school board sent her
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a letter on April 9, 2002, saying that her non-renewal was “due to problems with
communication and teamwork.” R.31-6 at 10. At Evans-Marshall’s request, the board
held a formal hearing about the employment decision. Principal Wray, Superintendent
Zigler and Evans-Marshall all testified, and the board again voted unanimously not to
renew her contract.
(The alert reader may notice that some of the factual allegations raised in Evans-
Marshall’s complaint and addressed in our first decision do not appear here. See Evans-
Marshall v. Bd. of Educ., 428 F.3d 223, 226–27 (6th Cir. 2005) (Evans-Marshall I). The
distinction between a Civil Rule 12(b)(6) and a Civil Rule 56 appeal explains the
difference. As is often the case, discovery will confirm the accuracy of some allegations
and disprove others. We recount today only the allegations in the complaint backed up
by “the pleadings, the discovery and disclosure materials on file, and any affidavits.”
Fed. R. Civ. P. 56(c)(2).)
In March 2003, Evans-Marshall filed this § 1983 action against the school board,
Wray and Zigler. She alleged that the school board and other defendants had retaliated
against her “curricular and pedagogical choices,” infringing her First Amendment right
“to select books and methods of instruction for use in the classroom without interference
from public officials.” R.1 ¶¶ 32, 36. The defendants moved to dismiss the complaint
for failure to state a claim under Civil Rule 12(b)(6), but the district court held that
Evans-Marshall had sufficiently alleged a First Amendment violation. We affirmed.
Evans-Marshall I, 428 F.3d 223.
After discovery by both sides, the defendants again moved for summary
judgment, arguing that the Supreme Court’s intervening decision in Garcetti v. Ceballos,
547 U.S. 410 (2006), and the unrebutted facts gleaned from discovery foreclosed Evans-
Marshall’s claim. In the alternative, they sought summary judgment on the ground that
the school board should prevail under the balancing test announced in Pickering v.
Board of Education, 391 U.S. 563, 572–73 (1968), or that there was no causal link
between Evans-Marshall’s curricular choices and the non-renewal of her contract. The
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district court granted the defendants’ summary judgment motion. It declined to apply
Garcetti to the dispute and held that Evans-Marshall’s teaching methods and curricular
choices survived the Pickering balancing test. But it concluded that she had not
provided sufficient evidence “link[ing] her teaching” methods and curricular choices to
“the Board’s decision to not renew her contract.” R.52 at 47.
II.
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 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.
A.
In free-speech retaliation cases arising in the employment context, we ask three
questions: Was the individual involved in “constitutionally protected” 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 protected
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 protects
the speech of employees only when it involves “matters of public concern.” Connick v.
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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 protected 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 employee’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 Pickering, the Court
considered the claim of a high school teacher whom the principal 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 teacher’s] daily duties in
the classroom,” the Court ruled for the teacher, concluding that the school board’s
interests did not outweigh his desire to “contribute to public debate” like any other
citizen. Id. at 572–73.
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
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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 deputy,” making the relevant
speaker the government entity, not the individual. Id. at 421 (emphasis added). “We
hold that when public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.” Id.
B.
A First Amendment claimant must satisfy each of these requirements: the
Connick “matter of public concern” requirement, the Pickering “balancing” 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 political,
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-
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Marshall’s class, and they went to the school board meeting 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 concern” test, as the district court correctly determined.
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 curricular 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 outweighed 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 concluded that
Evans-Marshall stumbled over causation. The court did not believe 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 accounting of the evidence and the chronology of events shows why.
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Before any parents complained about her reading assignments and classroom
discussions, Evans-Marshall had never received a negative performance 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 discussions. R.41 at 24–25. In December 2001, Evans-Marshall complained
to Superintendent Zigler about Wray’s behavior. And when the semester resumed 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 non-
moving party: the teacher. Evans-Marshall satisfies Pickering balancing and has shown
that her teaching choices caused the school board to fire her.
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
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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 deciding what, when and how English is
taught to fifteen-year-old students. Consider the difference between the speech of
Evans-Marshall and Marvin Pickering, 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 classroom without interference
from public officials.” R.1 ¶ 32. But that is not 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 curriculum.” O.R.C. § 3313.60(A). State law gives elected
officials—the school board—not teachers, not the chair of a department, not the
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principal, not even the superintendent, responsibility over the curriculum. This is an
accountability 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 accountability
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 “required . . . 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 teachers. 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 curricular 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-mine
curricular disputes into constitutional stalemates.
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That is not the only problem. What employer discipline arising from an
employee’s manner of teaching—choices of books and the methods of teaching
them—does not implicate speech? Could a teacher respond to a principal’s insistence
that she discuss certain materials by claiming that it improperly 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 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 curriculum 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 infrequently 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., concurring).
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.
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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 curricular 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 Circuit disposed
of the teacher’s retaliation claim based on pre-Garcetti precedent, 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 Garcetti 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
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and pedagogy, 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 “reasonably related to legitimate pedagogical concerns”
standard of Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988). See
Panse v. Eastwood, 303 F. App’x 933, 935 (2d Cir. 2008). Other courts of appeals,
including 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 concern” and (3) may satisfy Pickering
balancing depending on the circumstances 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 established a new threshold
requirement in this area. Evans-Marshall’s failure to satisfy this requirement governs
us here. “[A] plaintiff may not run home before she reaches first base.” Weathers v.
Lafayette Parish Sch. Bd., 520 F. Supp. 2d 827, 837 (W.D. La. 2007).
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Nor can Evans-Marshall sidestep this conclusion on the theory that Garcetti does
not apply. In his dissent in Garcetti, as Evans-Marshall points out, Justice Souter raised
concerns about the applicability of the decision to “academic 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 teacher at a
“public college[]” or “universit[y]” 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 secondary 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 oversight, 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,
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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., concurring). 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 decisions: “The First Amendment concept of academic freedom does not
require that a nontenured professor be made a sovereign unto himself.” Parate, 868 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.
III.
For these reasons, we affirm the judgment of the district court.