1. Gerri Spinella Ed.D. Elizabeth McDonald Ed.D.
Teachers and The Law 7th Chapter 9 When Can Schools Restrict Freedom of Expression? Fischer, Schimmel, Stellman PowerPoint Presentation
Gerri Spinella Ed.D.
Elizabeth McDonald Ed.D.
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2. Key Concepts When Can Schools Restrict Freedom of Expression?
Teachers and Free Speech
Teaching Methods
Controversial Issues and Academic Freedom
Created by the National Child Abuse Prevention and Treatment Act
Students and Free Speech
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Copyright © Allyn & Bacon 2007

3. When Can Schools Restrict
Chapter 9
When Can Schools Restrict
Freedom of Expression?
Essential Question
In your experience, how has your school restricted the freedom of expression for a teacher or student?
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4. Underground Publications (158)
KEY TERMS- Chapter 9
Freedom of Speech ( )
Academic Freedom (134)
Opprobrium (134)
Underground Publications (158)
Obscene Material (160)
-Reasonable Care: degree of care o a teacher of ordinary prudence would have used under like circumstances
Ex. Placing a tether ball pole so close toe the monkey bars , providing a natural incentive for a young child to try to slide down the pole
Failure to be more careful when dangers are greater….to provide careful instructions, clear warnings and close supervision ---would constitute negligence
-Duty of Care – when the risk of death to a child is balanced against the burden sought to be imposed on the counselors, the scales tip in favor of duty. (Ex. Telling the counselor about a student trying to kill themselves or others…)
Comparative negligence-allows negliglent students to recover damages has been trend;
Contributory Negligence: plaintiff cannot recover damages if the plaintiff's own negligence was in any way cause of injury – student severed two fingers in Shop II; however, evidence showed that safety issues were addressed; the younger the student, more difficult to prove
Comparative negligence-permits judge or jury to compare the relative negligence of the plantiff and the defendant in causing the injury and to make an appropriate damage award. (ex. 9 year broker her leg on a merry-g-round, court compared the negligence of the student with that of the school board (supervision); awarded 50% amount of compensation to each.
-Assumption of risk- defense against liability in activities such as competitive sports; person who know and appreciate the danger involved in an activity; voluntarily engage in it –expose them to predictable risks.
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Copyright © Allyn & Bacon 2007

5. CRITICIZING SCHOOL POLICY OR PERSONNEL
Teachers and Free Speech
CRITICIZING SCHOOL POLICY OR PERSONNEL
U.S. Supreme interpreted the Fourteenth Amendment (prohibits states from depriving life, liberty or property without due process) to incorporate the First Amendment
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6. Pickering v. Board of Education
Case Presentation
Pickering v. Board of Education
p. 124
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Copyright © Allyn & Bacon 2007

7. Pickering v. Board of Education
Marvin Pickering wrote a sarcastic, long letter to newspaper
Against Superintendent and School Board
Excessive athletic expenditures”
“Alleged that school board was unable to pay teachers’ salaries. . .”
“Taxpayers were really taken to the cleaners.”
Marvin Pickering – H.S. teacher from Will County, Illinois, published a long, sarcastic letter in the local newspaper about the way his superintendent and school board raised and spent funds; letter detailed excessive athletic expenditures by school officials, who were then allegedly unable to pay teachers salaries;
Board of Education – stated that letter contained false and misleading statements
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Copyright © Allyn & Bacon 2007

8. Supreme Court Responds To Pickering
Board asserted that damaged professional reputations of school administration and schools.
Supreme Court rejected that public comments by a teacher on matters of public concern may furnish grounds for dismissal.
Pickering made several incorrect statement on current issues that were critical of his employer but did not impede his teaching or interfere with the regular operations of schools
Teacher’s right to speak on issues of public importance may not furnish the basis for his dismissal from public employment
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Copyright © Allyn & Bacon 2007

9. Educational Implications
1. Can teachers be dismissed for making public statements that are not accurate?
2. Can a teacher be transferred for publicly criticizing a school program?
3. Can a School Board ever restrict teacher’s rights to publicize their views?
No: Court Balanced the teacher against the interest of school board --- several factors
Factors:
Need for harmony in schools
Whether the criticism injured the working relationships\
The time, manner, place and context of the speech
Degree of public interest involved
Effect of the speech on the teacher’s ability to work effectively No
It depends on circumstances – transfer – Courts have to determine whether the use satire or criticism is a matter o public concern (two cases – Virginia – teacher was disciplined)
Yes Justice Marshall “It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal (For ex. Counselor told a secretary that two of the students she was counseling were homosexual; another President of a teacher’s association for stating that the district was snake pit for new teachers.
4. Can teachers be disciplined for publicly criticizing their immediate superiors?
Copyright © Allyn & Bacon 2007
Copyright © Allyn & Bacon 2007

10. Further Educational Implications
5. Private Criticism is protected depending upon circumstances (manner, time, and place of confrontation).
6. Teachers are not required to go through the chain of command if it is about matters of public concern.
Personal complaints are not protected by the First Amendment.
Teachers’ comments are not considered matters of public concern in some cases.
Personnel Matters are not necessarily excluded from First Amendment Protection.
It depends on the circumstances. . . (128) courts review manner, time and place of confrontations when balancing the rights in conflict
Not about matters of public concern
No --- public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest
(129) Cases illustrate that (1) all courts recognize that matters of public concern are protected by the First Amendment; (2) judges do not always agree about what matters concern the public; and (3) courts have granted school boards the right to continue teachers’ speech that is related to their personal interests
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Copyright © Allyn & Bacon 2007

11. 127 – Can Teachers always be punished if their statements cause disruption in the school?
Not necessarily
COURT CONSIDERS SEVERAL FACTORS IN BALANCING THE INTERESTS OF TEACHER AGAINST THE INTERESTS OF THE SCHOOL BOARD.
Copyright © Allyn & Bacon 2007
Copyright © Allyn & Bacon 2007

12. Teachers and Free Speech
How do courts rule when some of a teachers’ speech is protected and some is not? The Courts:
Teachers and Free Speech
decide whether the complaint involve matters of public concern.
apply the Pickering Test---balancing the interest as a citizen in discussing public issues against the board’s interest as an employer promoting efficiency.
ask whether the protected speech was a “substantial or motivating factor” in the board’s action against the person.
decide whether the board would have reached the same decision “even in the absence of the protected conduct.”
N. Carolina case – teacher made controversial statements about the personnel controversy and this was protected by the court. Federal court disagree and that this was an open discussion at the board meeting
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Copyright © Allyn & Bacon 2007

13. Controversial Issues and Academic Freedom
To speak freely about any subjects
To experiment with new ideas
To select appropriate teaching materials and methods
NOT ABSOLUTE. . .
COURTS BALANCE IT AGAINST COMPETING EDUCATIONAL VALUES
Courts protects teacher’s right to evaluate and criticize existing values and practices in order to allow for political, social, economic and scientific progress
Ex. Marilyn Parducci – 11th grade – used Welcome to the Monkey House; principal advised her not to teach the story….she disagreed; was dismissed.
Courts felt that the school board failed to show that the assignment was inappropriate reading for juniors or that it created a disruption to the educational process
Consider the age of students, the words used, and the relevance to the curriculum
Copyright © Allyn & Bacon 2007
Copyright © Allyn & Bacon 2007

14. School Board Rights & Academic Freedom
School Boards:
can require or prohibit the use of textbooks.
can determine curricular disputes , including selection of plays.
can be ruled constitutional to remove literary classics from curriculum if relates to reasonable legitimate educational concerns.
cannot reject texts for any reason but it is dependent upon the constitutional manner.
cannot prohibit social studies teachers to discuss controversial issues.
School Board Rights (136) – ultimate authority to make these decisions in electives as well as in required courses
For example: Henry Sterzing, a civics teacher, taught a unit on race relations – discuss interracial marriage and that he did not oppose it.
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Copyright © Allyn & Bacon 2007

15. Teachers Rights and Academic Freedom
do not have the right to preach their religious beliefs in schools.
may be punished for discussing topics or distributing materials that are not relevant.
may protect teachers’ controversial responses to students’ questions.
may not be punished if their use of approved materials causes substantial disruption in the community.
may be punished for showing an R-Rated film.
Discussing topics – showing brochures about the 1969 rock festival Woodstock…..is this appropriate for 8th grade and promoting a viewpoint on drug use that was contrary to state law
Copyright © Allyn & Bacon 2007
Copyright © Allyn & Bacon 2007

16. School & Teacher Academic Freedom
Schools may have a legal right to refuse to rehire a teacher because of disagreement over teaching methods and philosophy.
Academic freedom is broader in colleges than public schools.
Teachers may be punished for failing to submit lesson plans.
Schools may have final authority to review and assign grades.
Lesson plans – science teacher fined 8,000 for repeatedly failing to provide comprehensive weekly lesson plans
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Copyright © Allyn & Bacon 2007

17. TEACHING METHODS
Teachers cannot be punished for using a controversial method that is not clearly prohibited
Example: Massachusetts Case has two conditions:
Any restriction must be reasonably related to a legitimate pedagogical concern (age and sophistication of students).
Schools must notify the teacher about what conduct was prohibited.
Consider due process; Roger Maillous – discussed a novel about conservative customs in rural Kentucky when a student said that the custom of seating boys and girls on opposite sides of the classroom was ridiculous….teacher responded that some current attitudes are ridiculous
- MASS case.
Controversial Methods Not Protected:
Allen Celestine ----word “fuck” required student to write it 1,000 times
Frances Ahern – allow students to determine course topics and materials; principal directed her to stop discussing school politics
Copyright © Allyn & Bacon 2007
Copyright © Allyn & Bacon 2007

18. Teacher Academic Freedom
Teachers do not have the right to preach their religious beliefs in schools.
Teachers should follow the text and syllabus in their course.
Teachers can be punished for discussing topics or disturbing materials that are not relevant.
Teachers may not be protected for controversial responses to students.
1995 Lari Scruggs – VA – high school math teacher responded with negative comments to two students who asked her views on interracial dating in study hall.
If the school district requires that a teacher uses approved material (human reproduction in 7th grade life science class…..they will not be punished
Can be punished for showing an R-Rated Film to students
May be protected for showing R rated films
Teacher’s offensive out of class language is sometimes protected. . . One would have to provide that there is correlation between why a person was hired with offensive language.
Copyright © Allyn & Bacon 2007
Copyright © Allyn & Bacon 2007

19. Teacher Methods
Teachers may not be punished for using a controversial method that is not clearly prohibited. Important considerations:
due process
two restrictions:
“reasonably related to a legitimate pedagogical concern”
School must notify the teacher about what conduct was prohibited
Roger Mailloux – in Lawrence MA – using the words sexual intercourse…
Copyright © Allyn & Bacon 2007
Copyright © Allyn & Bacon 2007

20. Teacher Methods Continued
Schools may impose an inflexible grading policy on teachers: depending on the facts of case and the rigidity of the policy.
Teachers can be punished for failing to submit lesson plans.
The school district has final authority to review and assign grades.
The school district may refuse to rehire a teacher because of a disagreement over teaching methods and philosophy.
There is a broader interpretation of academic freedom in colleges than in public schools.
Copyright © Allyn & Bacon 2007

21. Students and Free Speech
The Wooster Case
1965
The Tinker Case
Wooster – Earl was expelled form CA H.S. – he refused to apologize for a controversial speech he made during a school assembly.
The Tinker Case: group of students decided to wear black armbands protesting the involvement in Vietnam War. Court ruled that 1st Amendment protects symbolic speech as well as pure speech; express certain views; court ruled that the fear of the school board for disturbance was not sufficient to violate students rights.
Tinker Case does not always apply to elementary students due to the fact that the courts cannot agree.
Copyright © Allyn & Bacon 2007
Copyright © Allyn & Bacon 2007

22. Students & Free Speech
Schools can legally limit student expression and symbolic speech. Schools:
may take reasonable action to restrict student expression to prevent disruption.
use discretion to restrict symbols that might lead to disruption; cannot change school’s symbol against the wishes of students.
can prohibit demonstrations near a school or during a school assembly.
may punish lewd and offensive speech; may restrict messages on T-Shirts.
Cleveland HS forbids students from wearing buttons and badges
( )
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Copyright © Allyn & Bacon 2007

23. Student Rights Students cannot be required to do pledge of allegiance.
Students do not have a right to academic freedom.
Schools can remove controversial books from a school library; however, it depends on the facts of the case.
They must establish and follow consitutional criteria and reasonable procedures before removing controversial material.
Students do not have the right to remove “racist” books from the curriculum.
A student cannot engage in implicit expression by standing at attention while the flag is being saluted
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Copyright © Allyn & Bacon 2007

24. Case Presentation The Hazelwood Case p. 155
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Copyright © Allyn & Bacon 2007

25. Case Study Initial Proceedings Complaint Defendant
Answers (30 days) or motion to dismiss
Facts of claim by plaintiff seeks
Complaint
Interrogatories
Depositions
Document Requests
Case Study
Discovery Begins
Settlement Conference
Step by Step
In The
Court System
OUTCOME
EDUCATIONAL IMPLICATION
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26. Underground Publications
Publications are not sponsored by the school; therefore, publications:
cannot be banned for discussing controversial or unpopular topics.
cannot be prohibited from criticizing school officials and school policies.
Copyright © Allyn & Bacon 2007

27. Distribution Policies
Schools may control the distribution of underground publications.
Schools may restrict the distribution of materials that are libelous, obscene, or substantially disruptive.
Publication is not legally obscene if it contains offensive, vulgar or dirty language.
Schools cannot ban distribution of publications that promote a particular religious belief.
Cannot ban the sale of underground publications or prohibit the distribution of material not written by a student or school employee.
Copyright © Allyn & Bacon 2007
Copyright © Allyn & Bacon 2007

28. Screening of Student Publications
Courts held that any requirement for screening must clearly state the following:
how students are to submit proposed materials to the administration
a brief period of time during which the administration makes its decision
clear and reasonable method of appeal
brief appeal time to make decision u
Copyright © Allyn & Bacon 2007

29. When Can Schools Restrict
Chapter 9
When Can Schools Restrict
Freedom of Expression?
Essential Question
Based upon the court cases that were examined, how is the educator’s freedom of expression limited when it conflicts with other basic values?
Copyright © Allyn & Bacon 2007