The Barnyard

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?

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.

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 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.

In the interest of objectivity and full disclosure this is the article which was originally referenced.

http://www.foxnews.com/us/2013/02/21/teacher-refused-to-grade-student-report-on-guns-mother-says/?test=latestnews#ixzz2LZatXzf2

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.

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."

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.

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.

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.

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."

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.