A teacher's in-class curriculum in primary and secondary schools is not protected by the First Amendment, a federal appeals court ruled on Thursday.


"Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom," writes the Court of Appeals for the 6th Circuit in its decision (.pdf).

The decision came in a case where an Ohio teacher, Shelley Evans-Marshall, did not have her contract renewed after numerous parents complained about reading selections she assigned to her high school English classes.

Evans-Marshall, who taught English to 9th and 11th grade students and a creative writing course to 11th and 12th grade students, distributed a list of banned books to students in her 9th grade class. The students were required to form groups, pick a book from the list, examine the reasons the book has been banned, and lead an in-class debate about the book. Two groups in Evans-Marshall's class chose Heather Has Two Mommies by Leslea Newman, a children's book about a girl with two lesbian parents.

Some of the parents of the students in Evans-Marshall's class complained about Heather Has Two Mommies and Evans-Marshall was told by the principal to have the students choose another book. She complied with the principal's request, noting her students had "actually experienced censorship in preparing to debate censorship."

After completing the banned books assignment, Evans-Marshall had her class read Siddhartha by the German author Hermann Hesse. The book, about the spiritual journey of a young man in India during the times of the Buddha, contains descriptions of sex and has references to the Kamasutra.

At a meeting of the school board in October of 2001, about twenty-five parents complained about the curricular choices made by Evans-Marshall. At a subsequent meeting in November, nearly one hundred parents complained about her curriculum.

"You should be embarrassed," one parent told the school board in regards to the sexual themes found in Siddhartha.

In 2002, the school board voted unanimously not to renew Evans-Marshall's contract, claiming she had problems "with communication and teamwork."

A year later, Evans-Marshall filed suit against the school board, alleging the board retaliated against her "curricular and pedagogical choices" by refusing to renew her contract.

"When Evans-Marshall taught 9th grade English, she did something she was hired (and paid) to do, something she could not have done but for the Board’s decision to hire her as a public school teacher," said the court. "As with any other individual in the community, she had no more free-speech right to dictate the school's curriculum than she had to obtain a platform—a teaching position—in the first instance for communicating her preferred list of books and teaching methods."

The court affirmed Evans-Marshall's right to discuss matters of public concern and concluded that her exercise of free speech rights was "a motivating factor" behind the school board's decision to not renew her contract.

"That large segments of the community disagreed with Evans-Marshall's speech—her class assignments and teaching methods—is beside the point," said the court. "The question is whether the topics discussed are "of . . . concern" to the community not whether the community approved of the teacher’s position on each topic."

But, "pursuant to [her] official duties" as a teacher at a public school, the court ruled that Evans-Marshall was "not speaking as [a citizen] for First Amendment purposes."

"As Evans-Marshall does not dispute, she made her curricular and pedagogical choices in connection with her official duties as a teacher."

"The Constitution does not prohibit a State from creating elected school boards and from placing responsibility for the curriculum of each school district in the hands of each board."