Courts of Appeal respond to Roberts Court establishmentarianism
Sherman Dorn discusses two important (and distressing) recent court decisions restricting ability of students and teacher ability to make decisions on what happens in schools, Oct. 31, 2010.
This phrase tips the hand of the judges, because in the case's particulars, the teacher in this case was not directed not to use the controversial materials. In fact, the superintendent defended the teacher's choice at a public meeting, noting that the materials in question had been purchased by the system previously. So this was not a case of the teacher being insubordinate. Instead, it was a case of a teacher using the discretion implicitly granted her by supervisors and (at least in theory for the purposes of the question of law) being punished afterwards for using the discretion she had been implicitly granted.
A more sensible reading that still would respect the authority of school systems as employers would run something like the following: a public school employer has the authority and legal responsibility to set and manage curriculum and also to supervise teachers. So teachers do not have a constitutional right to override the written curriculum or to disobey explicit legal orders of administrators. But a public employer also cannot micromanage everything a teacher does, and when there is implicit discretion granted, a professionally-acceptable decision by a teacher has some protection. This is not a public-speech issue and wouldn't be covered by the usual precedent cited (Pickering). I strongly suspect that the current court would never extend the First Amendment in this case to K-12 teachers, but it would be consistent with the justices who ruled on behalf of academic freedom in Sweezy v. New Hampshire and other higher-ed cases as well as the California loyalty-oath case. When there is implicit discretion granted, a teacher has reasonable professional authority to pick which instructional approaches and materials would satisfy the explicit requirements of the job. And when evaluating students, teachers have professional discretion.
As I said, I don't think the current Supreme Court justices would find a majority in support of that, and it's clear that the federal appellate level is making shrewd guesses about the direction of the court. In both of these cases, the appellate justices are betting heavily in favor of Roberts establishmentarianism, and I'm afraid they are probably betting correctly.
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