Is Academic Freedom Dead in the 4th Circuit?

Last week, the 4^th Circuit Court of Appeals decided Lee v. York County School Division, __ F.3d ___ (May 2, 2007), holding that officials of a Virginia school district did not violate a high school teacher’s First Amendment rights when it removed from his classroom bulletin board items the officials deemed “too religious.” The items included a poster of George Washington praying and articles on prayer meetings in the Ashcroft-era Justice Department among others. The Plaintiff had urged for application of the line of school speech cases beginning with Tinker v. Des Moines Independent School District. Instead, the Court held that the teacher’s speech was subject to the Pickering balancing test for speech by government employees and protecting such speech only when it is “on a matter of public concern.” The Court then concluded that the teacher’s speech was “curricular” and therefore categorically not “a matter of public concern.” Hence, the school district did not violate the teacher’s 1^st Amendment rights in removing the items from the bulletin board.

“Academic freedom” is a much heralded though rarely protected (at least on the level of the individual teacher/professor) right in Supreme Court decisions. By treating all “curricular” speech as categorically outside First Amendment protection, the Lee decision would seem to make the concept a dead letter in the Fourth Circuit. Even admitted viewpoint discrimination is permissible if the speech is deemed “curricular” - no matter how paltry the school's justification - because such speech is completely outside the protection of the First Amendment. See Slip Opinion, 19 n 17. Certainly, schools must have authority to determine their curriculum, but this decision would seem to eliminate any freedom a teacher may have had in how to present that curriculum.

Further, while this rule would not apply to "non-curricular" teacher speech, that may simply prove a tautology. The Court invoked the Supreme Court's Hazelwood decision as a test for whether speech is curricular, and this decision has been applied to situations that would not meet the common sense definition of "curriculum." See e.g. Bannon v. Sch. Dist. of Palm Beach County, 387 F.3d 1208, 1214-15 (11th Cir. 2004) (after school, voluntary, student-initiated painting project on school construction panels was curricular under Hazelwood). Indeed, the Bannon decision was cited approvingly by the Fourth Circuit.

You can read more about the decision here and here. The Rutherford Institute's press release on the case is available here.