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June 22, 2005
Keeping the curriculum out of court
NSBA recently filed a brief to the U.S. Supreme Court in an upcoming case that may not be on many K-12 radar screens, because it isn't a K-12 case per se. In Garcetti v. Ceballos, the Court will consider where to draw the line between a public employee's free speech right to speak out on matters of public concern and a public employer's need to manage the workplace. NSBA's press release is here.
NSBA's brief essentially just warns the Court to be careful of the public school classroom context, however it rules on the case, which concerns a public prosecutor. The last thing schools need is for more teachers to sue school boards, asserting that they have a constitutional right to tell kids whatever they like as long as they can argue that it somehow is a matter of public concern. This relatively narrow argument is a little like the time NSBA filed a brief to the Court a couple of years ago in the case over whether Internet filtering software in libraries violates the First Amendment; NSBA's position was to urge the Court, however it decided that one, just to be careful to preserve school board discretion to use such software to protect children.
The concern over curriculum-related lawsuits is real. You may have read about a teacher's lawsuit against California's Cupertino Union School District, the district that, according to blaring press releases by the Alliance Defense Fund, "banned the Declaration of Independence" from its schools. The news media bit, and bit hard. The facts, of course, turned out to be decidedly more complicated, but by then, as usual, most of the media had moved on. Every school official caught in the culture wars should read this great and in-depth account by Peter Boyer in The New Yorker. Lots of good lessons.
In the Cupertino case, the court ended up rejecting three out of four of the teacher's legal claims, but allowed one to go forward, so presumably the legal bills will mount. Here, by the way, is the website the Cupertino parents set up to try to counter at least some of the venom spewed out against their community. The frenzy dismayed even the teacher in question, who overall seems like a decent fellow who was ill-used.
A similar lawsuit has been threatened against Michigan's Gull Lake Community Schools over two teachers asserting a constitutional right to teach intelligent design theory in science class. The school board, represented by NSBA Council of School Attorneys member Lisa Swem of the Thrun Law Firm, told everyone to take a deep breath while a special committee looked into the issue. On the committee's recommendation, the board just decided against allowing intelligent design to be taught as science, but teachers will be allowed to teach about it in high school electives like political science, humanities, and philosophy, as long as the topic fits the curriculum. The board seems to have handled this one well. We'll see what the local branch of Holy Trial Lawyers, Inc. thinks, though. They'd better be sure of their case: They've been warned that if they carry out their threat to sue, the board will seek sanctions against them for filing a frivolous lawsuit.
Lest NSBA be accused of one-sided worrying, BoardBuzz hastens to point out that this is an equal opportunity affliction. From the other end of the political spectrum there are cases like one in Indiana where a teacher is suing a school over her supposed constitutional right to explain to her students—elementary school special needs kids—why she supports Iraq war protesters. Other employees have sued, unsuccessfully, over their "right" to decide what controversial school play to have kids perform or to assign books not on the school board's approved reading list.
Bottom line: School boards have an obligation to determine the curriculum. As NSBA General Counsel Julie Underwood puts it, "Schools would be severely restricted in fulfilling their mission of educating all students if everything teachers say in the classroom raises First Amendment issues. Every personnel action taken by a school board, including disciplining or terminating employees, could be transformed into a constitutional crisis."
Posted June 22, 2005 12:00 AM
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