Who has the burden of proving which was
which? From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein I tend to agree with Marty's take here -- I think this is
basically a due process issue -- but I'm not sure all courts agree. I think
this was the real issue in Cockrel (The teacher got sandbagged. When the
community got upset, the school punished her for doing something it had given
her permission to do.) But while I think Cockrel is really a due process case,
the Sixth Circuit treated it as a free speech case involving employee speech
rights (e.g. Pickering, Connick etc.). And I'm not sure that the Sixth Circuit
is alone in mixing these ideas up. 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). ----- 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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