21 October 2010

Montag am Dienstag

This is yet another installment of "two wrongs don't make a right... but three, apparently, do."

Once upon a time, back before the invention of fire — or at least before the invention of the "personal computer" — I was a student at a high school in a rather small school district with continuing difficulty understanding the First Amendment.1 At one point, one of the fundagelicals in the community demanded that a book be removed from the school libraries and curriculum because it "encouraged disrespect for authority." The book in question was Ray Bradbury's Fahrenheit 451, thereby demonstrating that for at least that fundagelical, "irony" is just like "goldy" and "bronzy" (but made out of iron). Fortunately — that time — the school board actually listened to some of the students who spoke against the fundy's demand, as all of the students in question were committed to joining the military upon graduation; apparently, Fahrenheit 451 had not eliminated all of their respect for authority.

That brings us to today's awful, and dangerous, decision from the Sixth Circuit in Evans-Marshall v. Bd. of Educ. of the Tipp City Sch. Dist., No. 09–3775 (6th Cir. 21 Oct 2010)... which also began with Fahrenheit 451. I'll let Judge Sutton set the scene:

[…] Evans-Marshall assigned Ray Bradbury’s Fahrenheit 451 to her 9th graders. To the end of exploring the book’s theme of government censorship, she distributed a list compiled by the American Library Association of the “100 Most Frequently Challenged Books.” Students divided into groups, and Evans-Marshall asked each group to pick a book from the list, to investigate the reasons why the book was challenged and to lead an in-class debate about the book. Two groups chose Heather Has Two Mommies by LeslĂ©a Newman.

A parent complained about Heather Has Two Mommies, and the principal, Charles Wray, asked Evans-Marshall to tell the students to choose a different book. She complied, explaining to her class that “they were in a unique position to … use this experience as source material for their debate because they were in the … position of having actually experienced censorship in preparing to debate censorship.” After the class completed the Fahrenheit 451 unit, Evans-Marshall assigned Siddhartha by Hermann Hesse and used it as the basis for in-class discussions about “spirituality, Buddhism, romantic relationships, personal growth, [and] familial relationships.”

At the October 2001 meeting of the school board, twenty-five or so parents complained about the curricular choices in the schools, including Siddhartha and the book-censorship assignment. The next day, Principal Wray called a meeting of the English department and told Evans-Marshall that she was “on the hot seat.” Nearly 100 parents, as well as the local news media, attended the board’s November meeting. For over an hour, parents expressed concerns about books in the curriculum and in the school libraries. While the parents mentioned many books, they raised particular objections to the materials in Evans-Marshall’s classroom and her teaching methods. Superintendent John Zigler explained that the school board had purchased many of the materials, including Siddhartha, several years before, making it difficult to criticize Evans-Marshall for teaching a book the school board had bought. “You should be embarrassed,” one parent responded, referring to the explicit language and sexual themes in the book. Another parent complained that she had asked for an alternative assignment—instead of Siddhartha—and “was given three books,” two of which “were for a four-to-eight year old.” “I’m not going to put my daughter through this,” the parent added, explaining that she thought Evans-Marshall was “punish[ing] my daughter.” A group of parents presented the board with a 500-signature petition calling for “decency and excellence” in the classroom.

Slip op. at 2–3 (record citations omitted; italics in original). It gets better, too; Ms Evans-Marshall also trusted some of the wrong staffers at the school with photocopying chores.

The Sixth Circuit ruled against the teacher, who was eventually fired — formally, did not have her contract renewed — for "problems with communication and teamwork" (slip op. at 5, quoting the school board). Ultimately, this ended up in court as a free-speech retaliation claim by Ms Evans-Marshall against the school board. Ultimately, she lost, because the Sixth Circuit held that the (largely indefensible and irrelevant) reasoning in Garcetti v. Ceballos, 547 U.S. 410 (2006), means that:

Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teacher’s curricular and pedagogical choices from the school board’s oversight, as opposed to the teacher’s right to speak and write publicly about academic issues outside of the classroom. “[I]t is the educational institution that has a right to academic freedom, not the individual teacher.” Academic freedom implicates “[t]he freedom of a university to make its own judgments as to education,” requiring “deference to a university’s academic decisions.” In the context of in-class curricular speech, this court has already said in the university arena that a teacher’s invocation of academic freedom does not warrant judicial intrusion upon an educational institution’s decisions: “The First Amendment concept of academic freedom does not require that a nontenured professor be made a sovereign unto himself.” A school “may constitutionally choose not to renew the contract of a nontenured professor” when that professor’s “pedagogical attitude and teaching methods do not conform to institutional standards.” Just so here.

Evans-Marshall II, slip op. at 16–17 (citations omitted; boldface emphasis added).

Frankly, all three "sides" in the underlying dispute were in the wrong; the Sixth Circuit compounded the wrongness.

  • Evans-Marshall was in the wrong largely through her personal choices and some silly decisions. Whether those rose to the level of justifying the school board's later firing of her (calling it a "refusal to renew her contract" is merely a labelling nicety that changes only the burden of proof — not its substantial effect as a firing) is another question, not before the court... although even Judge Sutton's description indicates that the board would have had a tough case to make in a less-emotionally-charged context.
  • The parents were in the wrong in attempting to impose mob rule and "decency" in the schools, and in particular in an elective course for high school students (as in one of the other "complaints" concerning Ms. Evans-Marshall — the one involving the photocopying). They were even more misguided than Sam the Eagle of Muppet Show fame; and, most particularly, they were and are wrong as a matter of constitutional principle and law.2

    What's next? No news broadcasts at school? How about censoring Britney Spears's ouevre from student MP3 players, or perhaps gangsta rap? Or, more to the point, getting those Revised Standard Versions of the Bible out of the school library because they're not entirely consistent with the King James... or Romeo and Juliet because it depicts teenage love and implies teenage sex and disobedience to parents; Titus Andronicus because it involves cannibalism; Julius Caesar because it centers on (and arguably, under a shallow reading, advocates) treason and murder; To Kill a Mockingbird for its much-deeper-than-Bradbury antiauthoritarian streak; need I go on?

  • The school board was in the wrong for both knuckling under to the mob that was complaining about something they had not read, and for obfuscating the entire proceedings. (And, in particular, the school board's lawyer was wrong for letting things happen this way.)
  • Last, and far from least, the Sixth Circuit was wrong — perhaps, although not certainly, constrained to be so (at least in its own opinion) — in distinguishing educational institutions, the mission of educational institutions, and the faculty at educational institutions. Although it is possible to talk about these three elements as if they are separate, in fact and in function they are not. It compounded that error by continuing the illusory distinction between allegedly mandatory public school education and the option world of colleges and universities — a meaningless distinction as far as the need for academic freedom as a general proposition, albeit perhaps with more-detailed guidance from Authority for younger students.

Of course, the real losers here are the children of the Tipp City (Ohio) School District. Not only will these legal proceedings remain opaque to them (if disclosed to them at all), so that they cannot learn the lessons about realpolitik and dispute resolution that the proceedings would teach... but they will never again have the benefit of reading those books in class. And, in particular, it's the younger siblings who will suffer.

  1. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (although not apparent from the Supreme Court's opinion, the zoning law in question arose due as much to church as to school location; the distances in question had been carefully mapped out to shove all "adult" entertainment outside city limits); Garnett v. Renton School Dist. No. 403, 987 F.2d 641 (9th Cir. 1993) (students from that fundagelical's church form evangelical religious club at local high school, since reported to me as less than ethnically or politically diverse... or tolerant). And that's just two of the examples that have produced widely discussed reported decisions...
  2. Based on personal experience in more than one instance, there's a very, very high probability that at least some — and probably a majority — of the signatures on that petition and the speakers at the Board meeting were not from that school district. It is virtually certain that not more than 10% had read any of the books to which they were objecting... which, in the end, just makes Ms Evans-Marshall's point for her, at the cost of her job.