1. GRADING & THE FIRST AMENDMENT Presented by: Haley Turner Region 13 Curriculum Council November 7, 2013

2. Goudeau v. East Baton Rouge Parish Sch. Bd. 5 th Circuit decision issued October 7, 2013 Louisiana case: – Teacher claims that after she refused to comply with principal’s grading policy and filed a formal complaint, she was ultimately forced to accept a transfer to another campus. – Sued school and administrators for violation of her freedom of speech rights under the First Amendment.

3. The Allegations of Goudeau Alleged: – The principal prohibited teachers from giving grades lower than 60. Louisiana law prohibits schools from setting minimum grades, similar to Texas law. – Goudeau refused to comply with the principal’s rule and the principal directed the office staff to change the grades. – The principal threatened to have Goudeau transferred to another campus if she didn’t comply.

4. The Allegations of Goudeau Alleged: – Goudeau reported the minimum grading policy to the Assistant Superintendent and ultimately filed a formal complaint. – During the complaint process a determination was made that the principal’s grading policy violated state law. – After the complaint was completed, the principal transferred Goudeau to another campus.

5. Appearance of the First Amendment Goudeau claimed that adverse employment action was taken against her for exercise of her free speech rights. In order for her claim to move forward, she was required to establish: – (1) She suffered an adverse employment action; – (2) She spoke as a citizen on a matter of public concern; – (3) Her interest in the speech outweighs the government’s interest in the efficient provision of public services; and – (4) The speech precipitated the adverse employment action.

6. Was the Speech Protected? Public school employees do have First Amendment rights to freedom of speech while in the workplace, BUT… Employee speech is only protected by the First Amendment if it is speech on a “matter of public concern.” – Typically speech regarding the conditions of employment is not considered speech on a “matter of public concern” and therefore is not protected. The Court said: The speech is protected! – Speech reporting official misconduct, wrongdoing, or malfeasance involves a matter of public concern. – Goudeau was reporting a violation of state law. Goudeau was allowed to move forward with her suit.

7. What does Goudeau tell us? Employee objections to grading policies that are in conflict with the law may constitute protected speech under the First Amendment. It is important that all campus administrators are familiar with the legal restrictions on dictating teacher grade assignments and changing teacher-determined grades.

8. Review of Texas Grading Laws Board Policy EIA (LEGAL) and (LOCAL) A school district shall adopt a grading policy (TEC § 28.0216): – Must require a teacher to assign a grade that reflects the student’s relative mastery of an assignment; – May not require a teacher to assign a minimum grade for an assignment without regard to the student’s quality of work; and – May allow a student a reasonable amount of time to make up or redo an assignment or exam that the student failed.

9. Review of Texas Grading Laws Grades are final (TEC § 28.0214): – Exam or course grade issued by a teacher is final – An exam or course grade may not be changed UNLESS the board of trustees determines that the grade is arbitrary, erroneous, or not consistent with the school district grading policy applicable to the grade.

10. Teacher Discretion and Academic Freedom Academic freedom is the concept that educators have freedom in the classroom with regard to instructional techniques and generally the way the course material is delivered. K-12 teachers have not been afforded academic freedom to the same extent university professors have. Teachers may object to grading policies or grade related requests based on their academic freedom to assign a grade.

11. Academic Freedom & Grading 5 th Circuit Court of Appeals (Hills v. SFA Univ.) – In 1982 the Fifth Circuit held that a teacher’s right to award a grade was not an academic freedom as it was not a “teaching method” protected under the First Amendment. Commissioner of Education – Teachers do not have the right under academic freedom to award grades; – Teachers must comply with the grading policy adopted by the school board. – If a district’s grading policy lacks clarity, then the principal can interpret and give further directives.

12. Enforcing Grading Policies Texas law requires school boards to adopt a grading policy. – Teachers are required to comply with a school board’s grading policy and a principal’s reasonable interpretations of that policy. Review your grading policies and ensure they are clearly communicated. Educate your principals: Review your district’s campus-specific grading rules and ensure those are in line with the board’s intent and are clearly communicated and consistently applied.

13. GRADING & THE FIRST AMENDMENT Presented by: Haley Turner Region 13 Curriculum Council November 7, 2013