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Courts of Appeal respond to Roberts Court establishmentarianism

Publication Date: 2010-10-31

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.

by Sherman Dorn

Last week, two federal court cases restricted the ability of both students and teachers to make decisions about what happens in school. In one, an appellate court ruled that a cheerleader had no right to refuse to participate in a cheer specifically supporting her rapist, and in the other a court ruled that teachers have no protection against firing related to class-specific curriculum decisions. At one level, the second decision is another consequence of the pretty horrific Garcetti case a few years ago that declared that the area in which a public employee has the least rights to speak out publicly is in her or his area of expertise. That's the focus of the analysis by Scott Bauries. At another level, I think we are seeing the federal appellate courts responding to the Roberts' Supreme Court direction supporting establishment authority in a broad swath of activities from criminal-justice procedures to public-employee law.

I suspect that the first case was decided correctly from almost any perspective except the outcome in the particulars. Yes, it's absolutely awful that a cheerleader was asked to cheer specifically for someone alleged to have raped her. That's the wrong substantive decision by the squad's coach. But educators have to have the legal right to make bad decisions without the bad decisions being unconstitutional decisions, and because participation in extracurricular activities is voluntary, there is going to be a lower standard for school-system behavior. There are a few variations where the student would have a greater case that being kicked off the squad is illegal (primarily if the student was fulfilling graduation requirements such as P.E. through participation, and the student was not granted course credit when she was kicked off the squad). But I'm not sure what theory of a case here would be able to answer questions about teachers and coaches not looking over their shoulders about everything. I want to reiterate: in my view the substantive decision of the coach is absolutely unethical. I'm not sure there was another way that an appellate court could have ruled given the historical relationship between courts and schools.

I understand why the second case (Evans v. Marshall) was decided against the teacher, but it's another extension of Garcetti that's unnerving and also unnecessary. If I understand the case correctly, this was a matter of parents deciding after the fact that a teacher's reading choices were inappropriate and putting pressure on the schools to supervise the teacher more closely. The teacher did not have her contract renewed after extensive conflict with the school administration, and the allegation in court was that the firing was retaliation for her constitutional exercise of authority over classroom choices. What struck me first about the decision is that it addressed the constitutional issue when the facts of the case appear to have been a matter of a teacher with a whole load of conflict. How much of the non-renewal was related to the teacher's decision about books and assignments, and how much the inability to work with administrators? The first raises constitutional issues, but the second is a matter of professional relationships that doesn't raise constitutional issues.

But to the constitutional matter: I think the court used a false dichotomy to portray the issue as either one of first-amendment protections or employer jurisdiction. Here's the key sentence from p. 13:

Could a teacher continue to assign materials that members of the community perceive as racially insensitive even after the principal tells her not to? (emphasis added)

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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