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Another high school teacher has decided his personal views should be the moral compass for his class.
A English teacher at Denton High School in the Dallas-Fort Worth area allegedly refused to grade two student reports because they discussed guns.
According to the report, the teacher told his students to write a report on anything they wanted.
One of the students chose to write about a Fort Worth gun show he had attended. He said the teacher told him he would get a zero on the assignment because of the topic.
The student and his mother met with the teacher. The mother's cell phone video recording of the meeting reportedly shows the teacher explaining that he refused to grade the report because of concerns about school violence
In an interview the student said "I feel like he has just stomped on our right to free speech. He told us we would not be allowed to express ourselves and didn't even consider what we had said."
In a statement, the Denton Independent School District said, "The teacher has accepted the paper and apologized to the student for misperceptions. The teacher's intent was for guns not to be trivialized in any school situation because of recent events."
I'm curious; are you wanting to discuss the smaller issue of why the teacher made this particular decision but ultimately (whether by force or otherwise) changed his mind and accepted the paper? Or are you wanting to discuss to what extent a student's first amendment rights may be limited on school grounds?
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Both would be excellent avenues to explore however I think the larger issue is how far should teachers be allowed to go with putting their own personal views or agenda on the table and then giving their personal beliefs greater weight than the views or opinions of the students especially if they are in opposition to those of the teacher.
It seems to me teachers often feel they have a bully pulpit and as such, carte blanch to espouse and opine their personal agenda and, as apparently in this instance, determine that a student’s view is deemed to trivialize an issue and therefore should be marginalized at best or completely discounted at worst.
That the decision was reversed may be as a result of the initial instruction which was to write a report on any subject. The reversal was, to me, secondary and would have been unnecessary had the teacher been more open to free flowing thought.
My two cents: the guy is an english teacher meaning his job is to teach and grade the ability of a student to compose grammatically correct sentences and structure thoughts on paper to convey ideas. It doesn't matter if the student is talking about guns, sex, rock 'n roll, whatever, it doesn't matter. If the teacher wanted to read papers on particular topics, he should have said so beforehand, not after the fact.
I would suggest to you that the concern you raise about the bully pulpit and agendas is not near the first amendment issue the student thinks it is. It is extremely clear that a student's rights in school may be and often times are reduced from the rights everyday citizens enjoy in public. The first amendment may be limited more in the school setting, just as the second and fourth may be as well. No rights are absolute, especially in a specialized setting that involves the interests of other citizens.
People say first amendment this, second amendment that all the time when trying to demonize someone else, but no rights are absolute, and people can have different opinions as to what balancing is necessary to achieve legitimate governmental objectives while protecting, to the extent possible, various rights. This kid is trying to demonize the teacher; in my opinion, this is not a constitutional issue at all, but rather a dispute between a mis-guided teacher and a student who feels like trying to make a point by alleging a first amendment violation.
The child alleges his first amendment rights are violated because the teacher wouldn't accept a paper about guns. Well, would there still be a violation if the teacher told the class beforehand they couldn't write about guns? Or lets go even further and say the teacher told the class they must write about giraffes, no other topics would be allowed. Because the student is now not free to write about guns, is that a first amendment violation? In my opinion, this isn't a first amendment issue. This involves a teacher who after-the-fact decided to not follow the rules he himself established, and a child who was upset by that decision. The teacher is wrong to not accept the paper, but the child is showing he truly is in need of an education by trying to turn this into a constitutional issue.
So given the SC school teacher fired for his American flag protest last month, I'm gathering the right-wing position is free speech is a right for students in school but not for teachers?
Kinda like being for small government but passing laws making woman have a vaginal probe inserted in her body whether she wants it or not, I guess.
I think it's a close call. I know of several opinions dealing with schools and protests and school newspapers, but I'm not aware of any opinons dealing with poor grades based solely on the content of an essay.
If this were a public school, and If the teacher gave him an F and the school affirmed the F and put it on his permanent grades all because of a non-threatening and non-obsence topic he chose, I could see a court finding a 1st Amendment violation.
Like I said, it's a close call, but I wouldn't be so quick to dismiss it. Would the 1st amendment be violated if a school says "write an essay about why would you vote for a certain candidate," and then gives an F to everyone who writes support for Romney? I thnk so.
And, no, there would be no 1st Amendment violation if the teacher told him the choice of topics in advance. The issue I see is when the teacher says "write on anything you want" and then gives him an F simply based on a non-offensive topic.
This post was edited by Thomas Sumter 14 months ago
there are bad teachers.
this, offhand, reminds me of the movie american history x where the nazi kid writes a paper on hitler for his jewish teacher
now, i guess that might not pass muster, i hope not. i hope the intent of the kid here was merely to be provocative on an issue that a lot of school folks might be a bit sensitive
but, if you ask open endedly for a paper, then suffer with what you get.
This is an interesting discussion. I am busy tonight but will try to respond tomorrow in more detail and after more thought to the issues you raise.
At the outset, my initial reaction to the situations you raise in your 2nd and 3rd paragraphs (the F and the Romney scenario) is that I still don't really see a 1st amendment violation. There has been no restriction on speech. The student still wrote the paper and turned it in, albeit with a bad grade. Perhaps its possible to find a violation when there is a negative impact, as opposed to a restriction in the first place, but perhaps that is more adequately dealt with under equal protection or due process concerns. I suppose there might be some case law that provides for an after-the-fact impact on speech being equal to a restriction on speech in the first place, but I don't really remember enough to be sure.
Another thought is that is speech really being impacted when the teacher is the only person who was to receive the speech in the first place. This isn't a situation where the teacher said the student couldn't talk about the gun show on school property or to his friends. In the protests and newspaper situations, we are dealing with public discussions or speech to a large number of people. The teacher is not prohibiting the student from these activities, but rather stating that a topic for a paper to be turned in (albeit in hindsight) was not appropriate (wrongly in my opinion). This seems like a different situation than preventing a student from making a public message.
Maybe all of this doesn't matter, but I wanted to put my thoughts down before I was taken away for the evening.
My thought is that an F grade (if upheld through an administrative process in the public school district) would be an adverse state action based on the content of the speech, sort of like a student being suspended for wearing an Obama shirt while the guy wearing a Romney shirt is not suspended.
In any event, it seems that in this case, the school forced the teacher to grade the paper on the gun-show. So no harm no foul at the end of the day. My scenario is a "what if" it were taken through an administrative process and the district still upheld the bad grade solely based on the essay's topic.
In the interest of objectivity and full disclosure this is the article which was originally referenced.
There was no mention of rights being violated (other than by the student) in the article. There does not seem to be a bias in favor of right leaning, gun toting, freedom of speech loving conservatives by the author of the article either.
From what I've gleaned in the article, the teacher's right to give a particular assignment with restrictions was never questioned.
It appears to me, the issue was whether or not the teacher could give an assignment - write an essay on any subject - and then, after the fact, decide arbitrarily to give the student an F or a zero or no grade because the report was a topic which the teacher found unacceptable or inappropriate. The teacher should have provided any unacceptable or off limit topics before rather than after the assignment.
This case is markedly different from the teacher stomping on the flag in that he (according to his spokesman) was not intending to offend but rather was attempting to make a teaching point and therefore was the instigator of the action which led to his termination.
Additionally, constitutional rights violations were not alleged in that case. The case focused more on behavior which was in opposition to the sensibilities and community standards coupled with his bringing personal political opinion into the classroom which apparently violated the school districts' code of ethical teacher conduct which prohibited such behavior.
Nobody has free speech in a classroom. No.bod.y.
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As with everything is constitutional law, there is a facts and circumstances test to determine if retaliatory action rises to the level of a first amendment violation. I have not found a case yet dealing with a student's grade, but there are a number of employer/employee cases that seem to be over the map. Actionable retaliation has been found when the employer bases hiring or promotion decisions on the protected speech, but the courts have refused to find actionable claims when employers issue verbal reprimands, withhold merit pay increases, and take various other actions short of demotion or termination. You are correct in that this aspect of the case is closer than I initially thought.
However, I would still like to approach the topic of whether this is constitutionally protected speech in the first place. While the first amendment provides for the right of free speech, it does not require that every person must listen. I haven't researched this but my guess is that first amendment protections are the greatest in the public arena (i.e., a street corner, public park, etc.), and are certainly less (although we don't know how much less) on school grounds. Public speech is not the case we are dealing with though. We are talking here about private speech between a single speaker and a single listener (who also is a government figure) who does not want to listen. The student has not been told he is prohibited from speaking generally or even on school grounds about the gun show. I am interested if this is even protected speech in the first place.
It seems to me the crux of this issue is the fact the teacher changed the rules after-the-fact. In my view, the question is if this sort of arbitrary action rises to the level of a first amendment violation. I'm interested to hear your thoughts.
This post was edited by CockAtLaw 14 months ago
It's only dicta, but I wonder if this passage gets us closer to the issue:
This type of non-political speech is more akin to that described in Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 271, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), in which the Court held that a school could lawfully censor the articles in an on-campus high school newspaper, as the publication was intricately connected to the school's educational curriculum. In so finding, the Court distinguished Tinker, noting that when a school may punish student expression and when it may refuse to promote student expression requires the application of two different standards and that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Id. at 273, 108 S.Ct. 562. The Hazelwood Court recognized that this more school-friendly standard “is consistent with our oft-expressed view that the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges.” Id. For it “is only when the decision to censor ... has no valid educational purpose that the First Amendment is so ‘directly and sharply implicate[d],’ as to require judicial intervention to protect students' constitutional rights.” Id. (citations omitted) (alteration in original).
I suppose this could be seen as the school making a determination to "refuse to promote student expression" or a "decision to censor," and if that is the case, the test is if the decision is related to "legitiamate pedagogical concerns" or it must serve a "valid educational purpose."
Here's another passage that may be relevant from O'Neal v. Falcon, 668 F.Supp.2d 979. If I knew how to attach pdfs to posts, i would attach the opinion.
In Settle v. Dickson County Sch. Bd., 53 F.3d 152 (6th Cir.1995), a junior high school student asserted that her right to free speech was violated when her teacher refused to allow her to write a research paper on Jesus and assigned her a grade of zero when she refused to write on a different topic. The teacher assigned the research paper so that students would “learn how to research a topic, synthesize the information they gathered, and write a paper using that information.” Id. at 153. Students could choose their own topic, subject to teacher approval. Id. Plaintiff requested the topic of Jesus's life, which was not approved. The teacher gave a number of reasons during discovery for disallowing the topic, including that she believed that it would be difficult for her to evaluate a research paper on a topic related to Jesus, she knew that plaintiff had a strong personal belief in Christianity that would make it difficult for her to write a dispassionate research paper, she believed that the paper would be difficult to grade because plaintiff might take any criticisms of the paper too personally, because plaintiff knew a lot about Jesus Christ, she could produce an outline without doing any significant research, and that she “just knew that we don't deal with personal religion-personal religious beliefs. It's just not an appropriate thing to do in a public school ... People don't send their children to school for a teacher to get in a dialogue with personal religio[us] beliefs. They send them to learn to read and write and think. And you can do that without getting into personal religion.” Id. at 154. The district court, relying on Hazelwood, granted summary judgment for defendants. On appeal, the Sixth Circuit affirmed. It noted:
After reviewing the precedents concerning students' rights of free speech within a public school, we find few cases that address the conflict between the student's *984 rights of speech in the classroom and a teacher's responsibility to encourage decorum and scholarship, including her authority to determine course content, the selection of books, the topic of papers, the grades of students and similar questions. Students do not lose entirely their right to express themselves as individuals in the classroom, but federal courts should exercise particular restraint in classroom conflicts between student and teacher over matters falling within the ordinary authority of the teacher over curriculum and course content. “Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968).
Id. at 155. It continued, “The free speech rights of students in the classroom must be limited because effective education depends not only on controlling boisterous conduct, but also on maintaining the focus of the class on the assignment in question.” Id. Thus, “[w]here learning is the focus, as in the classroom, student speech may be even more circumscribed than in the school newspaper or other open forum. So long as the teacher limits speech or grades speech in the classroom in the name of learning and not as a pretext for punishing the student for her race, gender, economic class, religion or political persuasion, the federal courts should not interfere.” Id.
The Court further concluded that Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), supported its conclusion that teachers have broad discretion in limiting speech when they are engaged in administering the curriculum because, though the Court held that a student could wear a black armband to protest the Vietnam War, it also stated that a school could limit otherwise protected speech if it did so as part of a “prescribed classroom exercise.” The Sixth Circuit recently affirmed this approach in Curry ex rel Curry v. Hensiner, 513 F.3d 570, 577-78 (6th Cir.2008), holding that “[e]xpressive activities made as part of the school curriculum call for a Hazelwood analysis” and under that analysis a restriction of a student's expression is constitutionally permissible if it was “reasonably related to legitimate pedagogical concerns.”
In Brown v. Li, 308 F.3d 939 (9th Cir.2002), the Ninth Circuit applied Hazelwood to the university setting. The court considered whether the University defendants violated the student's First Amendment rights when they refused to approve a “Disacknowledgements” section in his master's thesis. While it found no precedent on point, the court concluded that “a review of the cases discussing the relationship between students' free speech rights and schools' power to regulate the content of curriculum demonstrates that educators can, consistent with the First Amendment, restrict student speech provided that the limitation is reasonably related to a legitimate pedagogical purpose.” Id. at 947. The court noted that “the parties have not identified, nor have we found, any Supreme Court case discussing the appropriate standard for reviewing a university's regulation of students' curricular speech” and it was “thus an open question whether Hazelwood articulates the standard for reviewing a university's assessment of a student's academic work.” Id. at 949. The court concluded that it did, because the Supreme Court “has suggested that core curricular speech-that which is an integral part of the classroom-teaching function of an educational institution-differs from students' extracurricular speech and that a public educational institution retains discretion to prescribe its curriculum.” Id. at 950.
Damn, you did some westlaw research this morning. :)
I think the issue as far as the grading goes is whether it would be "reasonably related to legitimate pedagogical concerns" to uphold this kid's bad grades. Like I said, close call. But I could see how there are no "legitimate pedagogical concerns" if the guy is given an F for writing about hunting or a gunshow and then his grade is upheld by the school board.
The Settle v. Dickson County has a key distinguishing fact in that "Students could choose their own topic, subject to teacher approval." So up front, you know that there are limits on the topic you may choose -- you have to first clear it with the teacher -- unlike this case (and my hypothetical) where the guy is given a bad grade simply for having written about non-offensive, non-obscene content that the teacher rejected it after the fact.
I agree that is distinguishing. The O'Neal v. Falcon case that the large passage was pulled from also is distinguishable. While it dealt with a student who alleged an after-the-fact retaliation claim based on the topic of her speech given in a speech class (the topic was abortion which the professor did not like, and her grade was a B- as opposed to the A she thought she deserved), there is a distinction because of the legitimate reasons the professor gave for upholding the lower grade. It is unclear in this case if the teacher gave any such reasons; it appears he did not.
I'm curious as to your thoughts on whether the speech is protected in the first place. I'm not really sure where I lie on this. I remember reading about the whole public forum vs. limited public forum vs. private forum distinctions, and it doesn't seem like a paper that only will be read by the teacher would be anything but a private forum. On the other hand, this is a unique situation where the only listener is a state actor, so it is unclear if the new cases coming out regarding "right to ignore" or "right to listen (or not listen)" would be applicable to state actors.
The big picture, in my mind, is that the first amendment is meant to protect the marketplace of ideas, public speech on matters of public concern. In all other school cases, you're talking about school newspaper articles, or wearing certain shirts or patches, or even holding a "bong hits for Jesus" sign during a parade. All of the speech associated with these activities is intended to reach a broad section of the public. It is intended to be heard by many people to allow for discussion in the marketplace of ideas. In this instance, the child was not prohibited from any of that, there was a teacher who didn't want to read about a certain topic. This doesn't feel like a restriction on free speech to me. Was the teacher wrong in not laying out rules clearly beforehand? Absolutely. However, not every bad decision a teacher makes rises to the level of a constitutional violation, and, in my view, this lies in the former category, not the latter.
It's been more than a decade since I suffered through Wedlock's conlaw class, so I'm not too up to speed on the public forum / limited forum distinctions. I'm not even aware of the new cases about the "right to ignore or "right to listen." I do remember learning about the protests in schools and that, while students have 1st Amendment protections, they do not have the same protections as the average joe, as the school has legitimate reasons to limit speech. I also remember the "Bonghits for Jesus" case but I don't recall the result of that one (the t-shirt made the subject of that case memorable).
I understand what you are saying about this is not a "marketplace of ideas" issue, but I see the hypothetical extension of this case instead as the state punishing someone for simply having an idea. Had the school board upheld the bad grade, it would have been an adverse state action (a bad grade in public school) all because of the content of his speech. He would have been punished for simply expressing a non-offensive and non-obscene idea when he had been invited to write about whatever he wanted to write about.
In the end, the school board nipped it in the bud and did the right thing by forcing the teacher to grade the paper. There was no constitutional violation because it ended there. Had he suffered a permanent bad grade simply because of the content of his paper, it's a close call whether it would be constitutional.
I hesitate to say it's unconstitutional because by this afternoon you will have found an 8th Circuit case on point that tells me otherwise. Just messing with you. Good discussion.
Your Holiness, I appreciate all of the pro bono work you've put in on this, I really do. But, I tend to fall in with Thomas Sumter that the court decisions are so all over the road on this, it's fairly easy to support disparate points of view.
My question to you though, since you like to research, is drawn from the one I posed in my earlier post. Is there a LEGAL difference in the free speech rights of a teacher, like the one in South Carolina who stomped on the flag, and the free speech rights of a student, such as the one in Texas who was told he couldn't write about guns?
I gotta run to a Friends of Hamas rally, but in all seriousness, I look forward to your response.
This post was edited by 81 Alumnus 14 months ago
I'll take a look and let you know what I find. Also, "Your Holiness" is unnecassary. The Great Pontiff is a perfectly acceptable title.
Without looking at the law, I think the school district should not have fired the teacher.
It would be one thing if the guy had a history of "alternative teaching methods" that the school had warned him about in the past, but I'm not comfortable with them firing him simply for stomping on a flag as part of making his point. I have no clue where the courts fall on such an issue, though, and would likewise be interested in reading CockAtLaw's research. :).
As you would expect with all constitutional law, it is not clear exactly what test should be employed in determining what first amendment rights a teacher has in the conduct of his or her classroom duties. The cases that have come up to date have tried to analogize the specific situation to existing case law governing two separate situations: 1) the ability of the government to restrict speech of its employees (not taking into account the special circumstances faced by teachers in teaching and communicating interactively with students), and 2) the first amendment rights students possess in the school setting (which does not take into account the role teachers play as educators).
Here is one relevant passage I found:
"C. Teachers' First Amendment Rights in the Classroom: Choosing Appropriate Teaching Methods
Since the Supreme Court has never directly addressed which types of in-class teacher expression should be sheltered by the First Amendment, courts of appeals can look to other sources for guidance in determining their own standards of protection. For example, in an education law treatise intended to assist practitioners in understanding the legal principles of their profession, teachers are advised that, while they do not have the authority to establish the curriculum, they do possess some discretion in the classroom:
Public school teachers do not have the right to determine the content of the instructional program, but they do have some latitude in selecting appropriate strategies to convey the prescribed content. In evaluating the appropriateness of teaching materials and strategies, courts consider relevance to course objectives, threat of disruption, age and maturity of students, and community standards.177
The treatise plainly states that teachers may not use academic freedom as a pretext for omitting or ignoring prescribed course content.178 But when teachers implement strategies that are instructionally relevant and *433 supported by professional educators, the teaching method is more likely to survive judicial review."
One other interesting discussion is the beginning of the law review article that the above passage was pulled from. The introduction cites a situation somewhat similar to the flag situation and lays out the current gaps in the law:
"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 *410 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, *411 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 District16 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 *412 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
This commentary argues that teachers have limited First Amendment rights to utilize teaching methods that are not dictated by the state-prescribed curriculum, and until the Supreme Court definitively decides a case that addresses the issue of teacher in-class speech, lower courts faced with the issue should employ a modified version of the Hazelwood standard. This test contains the same elements as the original Hazelwood standard: a public forum analysis and a factual inquiry to determine whether the school's regulation of the teacher's speech was reasonably related to legitimate pedagogical concerns.28 However, the legitimate pedagogical concerns prong is tailored to fit the specific characteristics of *413 teacher expression rather than student speech. Finally, the test contains a third prong, the procedural element of notice, which requires schools to give a teacher fair warning of prohibited conduct prior to taking any retaliatory action against the teacher for engaging in that conduct."
The result of the bonghits for Jesus case was the speech was allowed to be regulated by the school because of the school's interest in making it clear that illegal drug use was not condoned.
It's been a while for conlaw for me as well. One of the reasons I enjoy discussing these issues is because it acts as a refresher for me to go back and critically think about the issues.
I agree the school board did the right thing. I have never once said the teacher did the right thing; I don't think the teacher acted appropriately at all. My question is really whether or not what the teacher did rises to the level of a constitutional violation. I'm still just not so sure.
I still have one question about your second paragraph above. I see your concern about the hypothetical extension, but I'm still not sure that completely answers it. You talk about the adverse state action being on the content of the speech, but wouldn't that require the state action to be based on the speech's viewpoint? In this instance, the teacher did not take his action because the paper was pro-gun control or anti-gun control or about the mechanics of how a gun worked or about the historical significance of guns and how they shaped the wild west. It seems that the teacher's action could be seen as content-neutral because it didn't matter what ideas about guns were being conveyed; all viewpoints about guns were being treated equally. This could be seen as viewpoint-neutral because it was the topic that was taboo to the teacher, not the speech or the content of the speech. Restrictions that are viewpoint-neutral may generally be broader than non-neutral restrictions.
I still go back to the fact the teacher changed the rules after-the-fact. The teacher acted arbitrarily, and perhaps the after-the-fact restriction is what causes any claim about educational concerns to be obviously not legitimate, or perhaps the fact the teacher is the only reader to render any concerns about child access to the topic to be invalid as well (presumably the teacher is old and sophisticated enough so that a paper on guns would not threaten the safety of the school or the educational mission of the school). I suppose I could see some sort of equal protection or due process concern because of the arbitrary action.
EDIT: I agree this is a good discussion. Sorry for taking up so much of your time with my incoherent ramblings. I agree with your earlier observation that the case is closer than I originally thought, but I still can't get myself over the hump that this is a first amendment issue. Difference in opinion and perspective I suppose.
When I think of content-neutral restrictions, I think of the old sign cases, such as the permissible "no advertising, no signs larger than 5x7, etc." I'm not sure I would call the teacher's own policy content neutral, but I see where you are coming from.
In any event, I enjoyed the discussion.
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