But, to bring this back to the Williams case, all of this presupposes that the teacher's comments were consistent with curriculum requirements, or what everyone understood the curriculum requirements to be.
Mark says that in the Williams case, the complaint contends that Williams was complying with curriculum requirements. If we are talking about a teacher distributing historical materials that include references to religion for the purpose of discussing them from an historical perspective, I would think the teacher has a pretty good argument. If we are talking about a teacher distributing historical materials that include references to religion as a pretext for starting discussions intended to promote the teacher's own religious beliefs, I think the school quire properly restricted such activities. I have no basis for knowing what actually transpired in this case -- but as an abstract legal matter, those two alternatives identify the poles of the continuum.
Alan Brownstein
UC Davis
At 04:48 PM 12/6/2004 -0500, you wrote:
Interesting you should raise that distinction, Alan. I think that there really is a due process issue in discharging a teacher for classroom speech or conduct that the teacher had every reason to think was acceptable at the time and that only became "unacceptable," and worthy of sanction, after the community objected. This was the problem in the Fourth Circuit Boring v. Buyncombe County case, too, and in Boring's cert. petition, counsel focused on the denial of due process (to no avail).
But from the perspective of the free speech clause, what difference does it make if the teacher is fired because her speech demonstrated (in the school's view, after the fact) a lack of judgment, or whether she's fired because her speech violated a specific ex ante curricular prohibition? Why should the former be entitled to greater constitutional protection, apart from the fair-notice issue?
- ----- Original Message -----
- From: A.E. Brownstein
- To: Law & Religion issues for Law Academics
- Sent: Monday, December 06, 2004 4:39 PM
- Subject: Re: Steven Williams Case
- I don't think Cockrel is really inconsistent with Marty's earlier statement that "Under the "government speech" doctrine, a state may require its teachers, in their official capacities (i.e., while teaching), to hue to the state's prescribed curriculum. This is the majority view in the courts of appeals -- that there is no Free Speech Clause right of individual teachers to teach what they wish in the classroom." In Cockrel, the teacher had permission to invite the speakers who caused the controversy into her classroom and the school district conceded that the presentations had educational value. The school district did not argue that the plaintiff had taught material that was outside of the curriculum. If she had, I think Marty is correct that the school district could have required her to hue the line and stick to the curriculum.
- The only open question in this area, I think, is what happens when teachers say things in brief statements during class that are not expressly prohibited by district rules, but are arguably outside of the curriculum, Not every sentence spoken in a classroom relates to the school's curriculum. There is some play in the joints -- particularly with regard to the discussion of unanticipated current events. Once the principal tells a teacher that particular comments are unacceptable (e.g. stick to the curriculum), I think the teacher has no free speech rights to continue a classroom discussion. What is less clear is whether the teacher can be disciplined for the comments he or she expressed before the principal instructed her to end the discussion.
- Alan Brownstein
- UC Davis
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