9 minute read
Legal Forum - Application of Policy on Controversial Topics
Dr. Dave Dagley, Professor Emeritus, University of Alabama and Dr. Amy Dagley, Assistant Professor, University of Alabama at Birmingham
Two months ago, a federal district court in Wisconsin reported a case arising from a school district policy designed to guide the discussion of controversial topics in the school setting. In recent years, several states have adopted statutes requiring school districts to have such policies. Some states have issued reasoned restrictions on specific topics with younger children, such as where our own Legislature prohibited classroom discussion and instruction on sexual orientation or gender identity in grades K-5. (2022 Ala. Acts 290, H.322.) Florida added a broader measure to its school code to reinforce the right of parents to control the upbringing of their children, by prohibiting the discussion of controversial topics and providing as an example a prohibition against discussing sexual orientation in grades K-3. (2022 Fla. Laws Ch. 2022-22, HB 1557.) In other states, school districts have adopted such policies on their own, independent of state law. Recent experience has instructed that states and school districts attempting to broadly control the discussion of controversial topics invite a lot of media attention and therefore more controversy. The Wisconsin case is Tempel v. School District of Waukesha and James Sebert, 23-CV-1169 (E.D.Wis. Dec. 20, 2023), and it is the subject of this commentary.
The school district adopted a policy entitled “Controversial Issues in the Classroom,” and numbered it as Policy 2240. The policy included the following language:
The Board believes that the consideration of controversial issues has a legitimate place in the instructional program of the District. Properly introduced and conducted, the consideration of such issues can help students learn to identify important issues, explore fully and fairly all sides of an issue, weigh carefully the values and factors involved, and develop techniques for formulating and evaluating positions.
For purposes of this policy, a controversial issue is a topic:
A. on which opposing points of view have been promulgated by responsible opinion;
B. which may be the subject of intense public argument;
C. which may have political, social or personal impacts on students and/or the community;
D. which is likely to arouse both support and opposition in the community.
The Board will permit the introduction of controversial issues when use in the instructional program:
A. is related to the instructional goals of the course of study;
B. is appropriate for the age and maturity level of the students engaged in the discussion;
C. does not tend to indoctrinate or persuade students to a particular point of view;
D. encourages open-mindedness and is conducted in a spirit of scholarly inquiry;
E. does not cause a substantial disruption in the school environment;
F. does not create a hostile school environment.
The superintendent announced at the beginning of the 2021-2022 school year that Policy 2240 would apply to ban Black Lives Matter, Blue Lives Matter, Thin Blue Line, anti-racist, and other materials. All such materials were directed to be removed from classrooms. This announcement brought attention from the press and more discussion at school board meetings. During the school year, Policy 2240 expanded to ban LGBTQ+ Pride flags, anti-racist signs, signs saying “This School Welcomes You,” safe space signs, and displays of the school district’s own Policy 2260 (a policy expressing the district’s commitment to Nondiscrimination and Access to Equal Education Opportunity).
Soon the school district experienced pushback from within the community, with petitions from parents calling for rescinding the restrictions and reinforcing a commitment to equity, with parents against the bans commenting at school board meetings, and with communications from an alliance of parents and community members raising concerns about heightened bullying and harassment of LGBTQ+ students. A teacher was suspended without pay for pinning a Pride flag in her classroom and refusing to take it down. During the next school year, more pressure was applied on the board, including movement toward a lawsuit from the community alliance, and record requests from the ACLU. At the end of the next school year, 54 teachers resigned, with many of them testifying at the June board meeting that they were resigning because of the bans and the monitoring of teachers who taught about race and diversity in their classrooms. Finally, for a spring concert for kindergarten and first grade students in 2023, the music teacher selected “Rainbowland,” a song written by Miley Cyrus and Dolly Parton, for students to sing at the concert. The principal and a central office administrator determined that the song would be controversial under Policy 2240 and ordered that it not be performed at the concert.
The music teacher then sent an email to an elementary teacher, informing her that her students would not be performing “Rainbowland” at the concert. The elementary teacher reacted to this news by tweeting a message on her private social media account on “X.” We do not know what was in the tweet, because the court removed the image of it from the record. The court record indicated that the tweet gained national attention from the media during spring break, with the elementary teacher, parents, and community members speaking to the school district’s decision about the song. When the elementary teacher returned after spring break, she was placed on administrative leave, beginning a process that ended with her contract termination in July.
The elementary teacher sued the school district and superintendent in federal district court, alleging that she was terminated in retaliation for exercising her First Amendment speech rights. This case record in Tempel v. School District (cited in the first paragraph, above) represents an early salvo in the case. The school district answered the teacher’s complaint with a motion to dismiss the case (Fed.R.Civ.P. 12(b)(6).) One of the key factors in determining whether a school employee can have a successful speech retaliation claim against a school district and its officers is whether the employee’s speech is protected by the First Amendment. If the speech is not protected, the court will award the school district a motion to dismiss, and the employee’s case is over. In four decades, beginning in the 1960’s, the Supreme Court has deployed five rules to guide the courts in deciding whether a public school employee’s speech is protected by the Constitution, drawn from five cases. Pickering v. Bd. of Educ., 391 U.S. 563 (1968) counseled the courts to use a balance test, in which the court must weigh the employee’s interest in speaking about school matters about which the employee has knowledge, versus the employer’s interest in managing the schools unimpeded. (For four decades, the employee’s interest almost invariably outweighed the employer’s interest.) Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274 (1977), taught that, when confronted with a mixed-motive situation (where, for example, the employee says that he is being retaliated for his speech, but the school district says there are other reasons that still warrant dismissal), the employee’s right to free speech does not inoculate him from the consequences of other bad behaviors. Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), taught that a school employee does not forfeit First Amendment protections by arranging to communicate with her employer privately, rather than in a public setting. Connick v. Myers, 461 U.S. (1983) added a rule that a public employee’s speech is protected if it is an issue of public concern, but it is not protected if it is an issue that is largely a private concern. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) was a studentspeech case that morphed into an employee-speech case. Under Hazelwood, teacher speech in the classroom is school-sponsored; as such, it is not protected by the Constitution (a few courts have called teacher classroom speech “hired speech”).
In 2006, the Supreme Court adopted another test for deciding whether a public school employee’s speech is protected by the First Amendment. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the high court adopted a new rule: when a public employee makes a statement pursuant to the employee’s official duties, the Constitution does not insulate the employee’s communications from employer discipline. Since 2006, the federal courts have in almost all circumstances where a school employee has asserted that the school employer has retaliated against the employee for the employee’s speech disposed of the case by granting a motion to dismiss under the Garcetti rule. That did not happen in Tempel v. School District, the case that is the subject of this commentary. The federal district court judge denied the school district’s motion to dismiss. The judge sought more facts, thus setting the stage for obtaining depositions from the parties, and the judge used at least three of the five earlier, pre-Garcetti rules to analyze whether the speech was protected. This could prove to be an important case in school law. Or, it could fizzle completely, if under further review the court finds a way to bring it under the Garcetti rule.
The case record thus far can suggest some lessons for school leaders, if examined through the lens of leadership studies, rather than a legal lens. The first point made in the policy (as printed in the court record) is an acknowledgement that controversial topics have a legitimate place in the school setting, when properly guided by the conditions articulated in the middle of the policy. The last two points in the policy (again, as printed in the court record) acknowledge the potential for a substantial disruption or the creation of a hostile school environment by addressing the controversial topic. The federal court judge in this case paints a picture of school leadership attempting to avoid controversial topics by pointing to the existence of the policy, and not what the policy says, as the rationale for squelching controversial topics. Sometimes, leaders have no choice but to address the really difficult topics.
