Teachers' Pedagogical Speech Not Protected

624 F.3d 332 (6th Cir. 2010)

By Neal Hutchens

Assistant Professor, Educational Policy Studies and Evaluation,University of Kentucky at Lexington, KY

In Evans-Marshall v. Board of Education, the U.S. Court of Appeals for the Sixth Circuit–relying on the standards announced in Garcetti v. Ceballos, 547 U.S. 410 (2006)–held that public school teachers do not possess any First Amendment protection for in-class speech related to curricular and pedagogical matters.


An Ohio high school teacher, Shelley Evans-Marshall, sued an Ohio school district, claiming her employment contract was nonrenewed because she used books in class that some parents found objectionable and chose pedagogical approaches her school’s principal disfavored. Evans-Marshall utilized such texts as Fahrenheit 451, Heather Has Two Mommies, and Siddhartha for class assignments. Her principal also disapproved of her plan to allow students to work together during a final exam and to include students’ self-evaluations as part of the grading process. In addition, her principal was concerned about some of the subject matter that appeared in student essays in Evans-Marshall’s creative writing class. Eventually, the school board voted unanimously not to renew Evans-Marshall’s contract and then reaffirmed its decision following a subsequent review hearing.

Procedural History

Evans-Marshall claimed that the school district violated her First Amendment right “‘to select books and methods of instruction for use in the classroom without interference from public officials.’” Evans-Marshall, 624 F.3d at 337. The school district argued that Evans-Marshall’s speech did not qualify for First Amendment protection based on the U.S. Supreme Court’s Garcetti decision, which held that public employees do not enjoy First Amendment protection when they communicate pursuant to their official employment duties.

The trial court granted the school board’s summary judgment motion, although it did not rely on Garcetti. Instead, the court determined that Evans-Marshall’s speech satisfied the balancing test announced in Pickering v. Board of Education, 391 U.S. 563 (1968). In other words, her constitutional right to speak out on matters of public concern outweighed the school district’s governmental interest in censoring her classroom speech. Nevertheless, the trial court determined that Evans-Marshall had failed to provide sufficient evidence that the school board’s decision not to renew her was linked to her curricular and pedagogical choices.

The Sixth Circuit’s Opinion

The Sixth Circuit stated that three questions framed its analysis for a free-speech retaliation case. First, had the teacher engaged in a constitutionally protected activity? Second, would the type of conduct engaged in by the employer discourage individuals of “‘ordinary firmness’” from continuing their activities? Evans-Marshall, 624 F.3d at 337. Finally, was the employee’s constitutionally protected activity a motivating factor in actions taken by the employer against the employee?

Looking to the Supreme Court’s public employee speech cases, the court determined that the first question proved dispositive in analyzing Evans-Marshall’s claims. Citing Connick v. Myers, 461 U.S. 138 (1983), the Sixth Circuit stated that a public employee’s speech is only entitled to First Amendment protection if it pertains to a matter of public concern. Next, turning to the Pickering decision, the court stated that if an employee’s speech deals with a matter of public concern, the court’s job is to engage in a balancing test to determine whether the employee’s interest in commenting on an issue outweighs the employer’s interest in promoting efficiency when carrying out its governmental functions. The court then discussed how Garcetti added an additional step to its analysis of a public school teacher’s First Amendment rights. In Garcetti, the Supreme Court determined that public employees enjoy no First Amendment protection for communications made pursuant to their official employment duties.

According to the Sixth Circuit, while Evans-Marshall’s speech satisfied the public concern requirement articulated in Connick and had shown that her interest in speaking outweighed the school district’s interest in censoring her speech under the Pickering balance test, her free speech claims nevertheless failed under the Garcetti standard. Evans-Marshall’s speech, involving in-class speech dealing with curricular and pedagogical choices, clearly occurred within the context of her official employment duties. Thus, under Garcetti, her classroom speech and pedagogical choices enjoyed no constitutional protection.

The court pointed out that Evans-Marshall’s position would improperly usurp the school board’s authority over curricular and pedagogical decisions, noting that Ohio law specifically vested this authority in city school boards. The First Amendment, stated the opinion, did not represent an obstacle to such an “accountability measure,” one intended to give citizens input in education matters through their participation in the selection of school board members. Especially given compulsory attendance laws, school boards represented a more appropriate locus of control over curricular and pedagogical matters, with teachers not enjoying some kind of First Amendment right to impose their personal views and opinions on a “captive audience.” Evans-Marshall, 624 F.3d at 341.

The Sixth Circuit also questioned how courts could actually oversee the First Amendment standards advocated by Evans-Marshall. Courts would be left to sort out competing First Amendment interests among teachers and between teachers and administrators. In the Sixth Circuit’s view, recognizing First Amendment rights for public school teachers as advocated by Evans-Marshall “would transform run-of-the-mine curricular disputes into constitutional stalemates.” Id. at 341.

The court noted that it was in step with other circuits in concluding that the “First Amendment does not protect primary and secondary school teachers’ in-class curricular speech.” Id. at 342. For example, the Sixth Circuit noted, the Seventh Circuit had relied on Garcetti in denying First Amendment protection to a teacher’s in-class speech and the Tenth Circuit had applied the Garcetti standard to a teacher’s speech about curriculum and pedagogy occurring outside the classroom. While not involving curricular or pedagogical speech in an in-class context, the Sixth Circuit described how the Fifth and Eleventh circuits had also applied the Garcetti standards to school employees’ speech claims.

The opinion also noted that even in decisions not relying on the Garcetti standards, courts had determined that a teacher’s in-class speech related to curricular and pedagogical matters and does not enjoy First Amendment protection. It discussed that the Fourth Circuit had not applied Garcetti to teachers’ in-class speech but had determined that such speech did not implicate matters of public concern. Similarly, the court discussed that while the Third Circuit had not determined the applicability of Garcetti to educators’ speech, it had decided in pre-Garcetti cases that even if a teacher may advocate outside the classroom for certain curricular materials, the teacher had no First Amendment right to actually use particular curricular materials in the classroom.

As an additional point, the court discussed that while the majority in Garcetti acknowledged that a dissenting opinion raised potentially significant questions regarding academic freedom and the standards announced in that decision, such concerns only dealt with public higher education. Even if individual academic freedom principles “could somehow apply” at the primary and elementary level, the court stated that cases had recognized substantial authority for higher education institutions to control curricular matters. Evans-Marshall, 624 F.3d at 344.


The Evans-Marshall decision is significant in its specific reliance on the Garcetti standards in dismissing First Amendment claims related to a teacher’s in-class speech involving curricular and pedagogical matters. The Sixth Circuit now joins several other circuits that have applied the Garcetti standard to public-school educators’ free speech claims. The decision is especially important because it directly involved a teacher’s in-class speech on curricular and pedagogical issues. The decision is reflective of a general trend in post-Garcetti cases, in which courts have generally been unsympathetic to claims that primary and secondary educators possess some type of First Amendment right to engage in speech pertaining to their professional duties.

An Attorney's Perspective

By David R. Hostetler, J.D., M.A., M.A.T.S.
Associate Professor, Leadership & Educational StudiesAppalachian State University, Boone, NC; Director, Lex-IS School Law Services, Chapel Hill, NC

The Evans-Marshall case, in addition to addressing important First Amendment principles, is also an interesting story of and lesson in school leadership and dynamics. One notable irony is that the case arose from a class project designed to teach students about the suppression of free speech. Students read Ray Bradbury’s Fahrenheit 451 and Herman Hesse’s Siddhartha, and they selected projects based on a list of the “100 Most Frequently Challenged Books.” Following parental and principal complaints the plaintiff teacher pointed out to her students that “they were in a unique position … of having actually experienced censorship in preparing to debate censorship.”

From a legal standpoint the court’s holding is not all too surprising in light of previous post-Garcetti cases by federal district and appellate courts. Thus far, most courts have sided with employers where work-related speech is involved. This trend does not seem likely to change, though there are and will be some fine nuances and twists (e.g., cases where some speech is work-related and some is not). Legally, it is safe to say that elementary and secondary school teachers have no or almost no academic free speech rights in the classroom, with some variation depending on the federal circuit.[1] This trend has been strengthened by the Garcetti opinion, which strictly limits employee rights by holding that work-related speech is not protected. As stated by the Evans-Marshall court, “The key insight of Garcetti is that the First Amendment has nothing to say about these kinds of decisions.” The court, in fact, applies what we might term, “The Garcetti Knockout Blow,” only after determining that Evans-Marshall’s speech involved an otherwise-protected matter of public concern (under Connick) and, in the balance, her interests outweighed the school’s (under Pickering).

Evans-Marshall, however, cannot overcome Garcetti. When government employees speak "pursuant to their official duties," Garcetti teaches that they are "not speaking as citizens for First Amendment purposes." 547 U.S. at 421. Any dispute over the board's motivations, Pickering balancing or the "public concerns" of her speech under Connick is beside the point if, as Evans-Marshall does not dispute, she made her curricular and pedagogical choices in connection with her official duties as a teacher.

The court also offers logic support for its holding: e.g., (1) there would be disorder if teachers’ curricular preferences must compete with and possibly trump principals’ or school boards’, (2) that boards are legally responsible for implementing the curriculum and classroom content (speech); and (3) they “hire that speech” (in the form of teachers) and must, therefore, “regulate what is or is not expressed.”

Aside from its legal highlights, this case offers several practice points and lessons. Regarding classroom control and content, schools retain broad authority and discretion (with which courts rarely interfere). This is good for schools, school leaders, and possibly for the students and parents, but not so good for teachers (at least from a professional standpoint). Regarding employer-employee relations, the case appears to exemplify why many disputes end up in costly, time-consuming litigation. Basic principles of common sense and of respectful interpersonal communications go a long way in “lubricating” the gears of smooth staff relations. A breakdown in this process causes the machine to grind to a halt. Perhaps if the teacher, principal, and parents made more efforts to communicate with one another and respect one another’s concerns, the matter could have been satisfactorily addressed. The facts of the case appear to show, e.g., escalating personal tensions between teacher and principal, teacher and parents, etc. The court hints at this, noting that it appeared “school administrators treated [the teacher] shabbily.” Finally, as a school attorney, I am keenly aware that most educators, with so many demands on their time, often do not know the law as they should. Teachers and principals sufficiently versed in its basic elements and their legal rights and duties are likely to act differently (and more appropriately) if they clearly know the legal boundaries. Had the teacher and principal had a basic primer on basic First Amendment law, perhaps this case would not have materialized.

Finally, it seems fitting regarding a case about teaching, learning, and freedom, to conclude where it began -- Bradbury’s Fahrenheit 451:

"Nobody listens anymore. . . . I just want someone to hear what I have to say. And maybe if I talk long enough, it'll make sense."

[1] The Fourth Circuit, where I practice, has declared that “the Supreme Court, to the extent it has constitutionalized a right of academic freedom at all, appears to have recognized only an institutional right of self-governance in academic affairs.” Urofsky v. Gilmore, 216 F.3d 401 (4th Cir 2000) (en banc) (addressing claims by Virginia state university professors).


A Professor's Perspective

By Richard Fossey
Professor and Mike Moses Endowed Chair in Educational Administration,University of North Texas,Denton, TX

As a professor who teaches education law to graduate students, I was struck by the clarity of the Sixth Circuit’s opinion in Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, 624 F. 3d 332 (6th Cir. 2010). Relying on Garcetti v. Ceballos, 547 U.S. 410 (2006), the Sixth Circuit clearly and emphatically ruled that a public-school teacher has no constitutional right to select books and methods of instruction in the classroom over the objections of her supervisors and the local school board.

As Neal Hutchens pointed out in his overview essay on the case, Evans-Marshall is not the first federal appellate court to apply Garcetti to decide First Amendment disputes between school teachers and their supervisors. In Williams v. Dallas Independent School District, 480 F.3d 689 (5th Cir. 2007 ), for example, the Fifth Circuit applied Garcetti in ruling that a coach’s communications regarding how athletic funds were spent at his school were made in connection with his job responsibilities and enjoyed no constitutional protection. (See also Robert C. Cloud, Silence is Golden When Public Employees Consider Speaking on Matters Pursuant to Official Duties, 245 Ed.Law Rptr. 1 (Aug. 6, 2009) (discussing Garcetti’s application in the public-school setting).

Even before Garcetti, federal courts had often sided with school authorities in disputes between teachers and their supervisors regarding the school curriculum. In Boring v. Bunscomb County Board of Education, 136 F.3d 364 (4th Cir. 1998), for example, the Fourth Circuit relied on Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) in concluding that the school curriculum is school-sponsored speech that the school board can regulate so long as it has a legitimate pedagogical rationale for its curricular decisions. “Someone must fix the curriculum of any school, public or private,” the Fourth Circuit wrote in an en banc opinion. “In the case of a public school, in our opinion, it is far better public policy, absent a valid statutory directive on the subject, that the makeup of the curriculum be entrusted to the local school authorities who are in some sense responsible, rather than to the teachers, who would be responsible only to the judges, had they a First Amendment right to participate in the makeup of the curriculum.” Id. at 371.

Evans-Marshall, then, is not a departure from previous federal court decisions regarding a teacher’s First Amendment right to make curricular decisions. It is, however, a particularly well-written and coherent application of Garcetti in a dispute about a classroom teacher’s claimed First Amendment right to make curricular and pedagogical decisions in her classroom. Evans-Marshall, like several federal court decisions that preceded it, makes absolutely clear that teachers in public high schools are speaking pursuant to their official duties when they are in their classrooms and enjoy no First Amendment protection for their curricular or pedagogical speech in the classroom setting.