Establishing a Constitutional Standard that Protects Public School Teacher Classroom Expression

Journal of Law and Education, Jul 2009 by Gee, Kimberly

I. INTRODUCTION

Deborah Mayer was hired as a substitute teacher at Clear Creek Elementary School (Clear Creek) in Bloomington, Indiana by Monroe County Community School Corporation (MCCSC) in August 2002.1 Two weeks into the school year, the "Launched" classroom teacher quit his position at Clear Creek, and in September 2002, the school asked Ms. Mayer to accept the full-time position.2 The Launched class was an alternative program for fourth through sixth grade students described by MCCSC as "'difficult,' many with 'bars to learning.'"3 After Ms. Mayer accepted the one-year contract as a probationary teacher, Clear Creek's Assistant Principal Tammy Miller commended her in a November 2002 evaluation for having "stepped into a difficult situation, taking over the class two weeks into the school year. The students in the classroom are feeling abandoned .... Unfortunately, this class has had four teachers in a one-year span. They are angry and not willing to trust."4

Ms. Mayer used the Time for Kids newsletter nearly every Friday to teach her students about current events; the newsletter was part of the approved curriculum at Clear Creek and the Launched classroom.5 On January 10, 2003, Ms. Mayer used an article from Time for Kids to lead a discussion on peace marches in Washington D. C. made in protest of United States' involvement in the Iraq War.6 When a student asked Ms. Mayer whether she would ever participate in a peace march, she replied that peace marches were taking place all over the country, including in Bloomington, Indiana, and that she honked her horn when driving past picketers demonstrating in front of the courthouse square with signs reading "Honk for Peace."7 Ms. Mayer then related the discussion to a program at the elementary school that trained students to be mediators on the playground and help other children solve problems peacefully.8

In Ms. Mayer's words, "that was the extent of the conversation."9 But one of Ms. Mayer's sixth grade students remembered the brief discussion and repeated it to her parents, who complained to Clear Creek Principal Victoria Rogers that Ms. Mayer was discussing the Iraq War in the classroom.10 Principal Rogers responded by canceling the school's annual "Peace Month" observance and telling Ms. Mayer never to discuss the war or her political views in class.11 The school board declined to renew Ms. Mayer's contract at the end of the year.12 Normally the decision to renew a probationary teacher's first-year contract is within the school's discretion,13 but Ms. Mayer maintained that the school dismissed her because of her political views regarding the Iraq War.14 Unfortunately for Ms. Mayer, this argument fell on deaf judicial ears as the district court and Seventh Circuit Court of Appeals ruled against her, and the Supreme Court denied certiorari without comment on October 1 , 2007. 15

If Ms. Mayer's case stands for anything, it seems to be the opposite of the Supreme Court's proclamation in Tinker v. Des Moines Independent Community School District'6 that "[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."17 Mayer and Tinker stand at polar ends of a spectrum of cases discussing the free expression rights of teachers. Despite Tinker's ringing endorsement of free speech, the Court has never directly addressed how the law should balance teachers' rights to free expression in the classroom with school boards' rights to set and administer the curriculum.18 Judicial decisions have uniformly stated that school boards possess the ultimate right to control the instructional program.19 However, the concept of academic freedom, containing both a dimension of substantive freedom for teachers to determine course methodology and a dimension of procedure that protects teachers from dismissal without notice, is a well-established and accepted doctrine in post-secondary public education.20 Without direct Supreme Court precedent, federal courts of appeals have struggled to establish a test that protects legitimate classroom speech at the elementary and secondary school levels while permitting school boards to take action against teachers who engage in offensive behavior.21

Several courts of appeals have analogized teacher in-class free speech cases to the Pickering v. Board of Education22 line of Supreme Court decisions addressing the rights of all government employees to engage in protected speech.23 Other circuit courts have analyzed similar claims using the Supreme Court opinions Tinker and Hazelwood School District v. Kuhlmeier24 concerning the free speech rights of students within the classroom.25 However, by attempting to categorize teacher expression as either the speech of a typical government employee or the speech of a student, both methods fail to consider the unique aspects of teaching.26 Commentators generally agree that neither analysis is entirely appropriate for evaluating a teacher's right to speak in the classroom.27