Sunday, May 6, 2007

Is Academic Freedom Dead in the 4th Circuit?

Last week, the 4th 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 1st 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.


Bob Ritter said...

William Lee, as a government employee, violated the First Amendment by posting religious material on his classroom bulletin board. Simply put, he was peddling his religion on public school students. WRONG, WRONG, WRONG. The posted materials had nothing to do with his teaching Spanish. So in answer to your question, Academic Freedom is doing well in Virginia as is freedom from religion under the Establishment Clause.
Bob Ritter
Jefferson Madison Center for Religious Liberty

Casey Mattox said...

Mr. Ritter,
Thank you for your comment.
I understand the objection (though I may ultimately disagree) that Mr. Ritter's bulletin board postings were inappropriate because of their religious content. But the Court's decision did not turn on that point. The Court did not decide this case on Establishment Clause grounds. As I note in my post, it held (as I read the opinion) that any speech that is deemed curricular is entirely outside First Amendment protection and school officials have absolute authority to censor it. The teacher has no recourse in the courts no matter how paltry the school district's justification or how blatantly discriminatory the district's actions.

As the Court decided this case it was not about a teacher "peddling his religion on public school students." The court's analysis would apply just as strongly if a teacher had posted on his classroom bulletin board an editorial condemning the Iraq War and the school district took it down (perhaps based on a concern that children of those serving would be offended). Even if the school district allowed pro-war editorials to remain on other teachers' message boards, the censored teacher has no First Amendment argument in the 4th Circuit in the wake of Lee v. York County.

Frankly, I hope very much that I am misreading this opinion, so please feel free to explain how I am wrong about its breadth.