Posted by Timothy Sandefur on February 17, 2007 11:01 PM

In 2006, the United States Supreme Court issued a little-noticed decision called Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), that has some interesting—and disturbing—implications for how public employees can express themselves on the job. A January 24th decision from the Seventh Circuit Court of Appeals, called Mayer v. Monroe County Community Sch. Corp., has now applied the Ceballos doctrine to the case of a government school teacher who alleged that she was unconstitutionally fired for telling students how she felt about the war in Iraq. And this raises the issue of whether the doctrine might be applied in cases involving government teachers who express to their students their own views with regard to evolution and creationism.

In Ceballos, a deputy D.A. in Los Angeles became convinced that there were inadequacies in an affidavit that had been used to support a search warrant in a certain case. As a good civil servant ought to do (and as a government prosecutor is ethically required to do), Ceballos wrote a couple memos to his boss regarding the problem. The D.A.’s office failed to follow through, and Ceballos was ultimately called to testify on the matter by the defendant in the case. Afterwards, he alleged that the D.A.’s office retaliated against him by reassigning him, denying him a promotion, and other things. He filed a lawsuit alleging that this retaliation violated his free speech rights.

The Supreme Court ruled against him. Although government employees “do not surrender all their First Amendment rights by reason of their employment,” the government can curtail its employees’ speech in certain circumstances. To decide whether its actions violate the First Amendment, the Court asks (a) whether the employee was speaking only as a private citizen on a matter of public concern, and (b) whether the government had a good reason for treating that employee differently than any member of the general public as a consequence of the speech. But in this case, Ceballos’ self-expression was “made pursuant to his duties.” Id. at 1959-60. And this fact “distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 1960 (emphasis added).

It’s nice when the Court draws clear lines, but there’s a big problem with this one. It encourages government to deter whistleblowers by drafting their employment descriptions so broadly as to encompass whatever speech the government wishes to deter. If the government can punish Ceballos for writing memos about faulty warrants, it can simply tell all incoming deputy D.A.s that their duties include writing memos about faulty warrants—and then fire them when they do so, leaving them with no First Amendment protection.

In the Mayer case, elementary school teacher Deborah Mayer alleged that she was fired after telling her students that she had honked when passing some demonstrators holding signs saying “Honk for Peace.” The Seventh Circuit explained that its previous decisions had long held that teachers “must hew to the approach prescribed by principals (And others higher up in the chain of authority).” Slip op. at 3. A school doesn’t really regulate speech “as much as it hires that speech.” Expression is “the commodity” that a teacher “sells to her employer in exchange for a salary.” Id. at 3. This is why a teacher “can’t use her classroom] as a platform” for self-expression:

[A] high-school teacher hired to explicate Moby-Dick in a literature class can’t use Cry, The Beloved Country instead, even if Paton’s book better suits the instructor’s style and point of view; a math teacher can’t decide that calculus is more important that trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz.

Id. at 3-4. Because the current-events lesson that Mayer was teaching “was part of her assigned tasks in the classroom,” the court found that the Ceballos case “applie[d] directly.” Id. at 5.

Not only does the teacher sell his or her expression to the school, the court went on, but “the pupils are a captive audience. Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling. Children who attend school beacuse they must ought not be subject to teachers’ idiosyncratic perspectives.” Id. at 4. Although recognizing that the “[m]ajority rule about what subjects and viewpoints will be expressed in the classroom has the potential to turn into indoctrination,” the court held that the best solution to this problem was to ensure that “the power should be reposed in someone the people can vote out of office…. At least the school board’s views can be debated openly, and the people may choose to elect persons committed to neutrality on contentious issues.” Id. at 4. Thus the school had the constitutional authority to order Mayer to “[keep] her opinions to herself.” Id.

This decision has obvious ramifications for the evolution/creationism conflict: teachers who want to use their classrooms as platforms for preaching Intelligent Design or other forms of creationism are not protected from termination by the First Amendment when they deviate from the lesson plan.

I think I agree with the decision in the abstract. The First Amendment, after all, prohibits only coercive government actions, or those acts that amount to coercion (such as fraud). An employment contract is entered into voluntarily and therefore doesn’t raise the same concerns—in theory.

But I’m a little concerned with the idea that the teacher waives his or her complete right to self-expression when signing up to become a government employee. Could a school prohibit a teacher from wearing a cross around her neck during class hours? If the prohibition extended equally to all religious symbols, then this would seem perfectly within the power of the government acting as an employer (since any private employer should be free to do the same). But it is a disturbing idea nonetheless. We don’t normally expect a free government to act in such a way.

One concern that comes to mind is “academic freedom.” The Supreme Court has never actually held that a teacher’s academic freedom is protected by the First Amendment—certainly not below the college level—but it has certainly come close, and the reason is that school classrooms are very close to a traditional forum for the exchange of ideas. Cases like Pico have taken great care to preserve the freedom to exchange even controversial ideas in schools, and the Court’s references to a “right to receive ideas” speak to the concern over orthodoxy being maintained in the classroom.

In addition, the Seventh Circuit’s idea that the political process is enough to prevent the school system from being used for indoctrination is not comforting: it makes no sense to rely on a majoritarian political process to protect individuals from the indoctrination resulting from what the court itself calls “majority rule.” The First Amendment has long been understood to be an important anti-majoritarian rule. And as far as educational values are concerned, it is just as important that teachers inculcate a sense of critical thinking and independence in students as that they teach their students a prescribed curriculum. Schools ought not to be mere factories for memorizing what’s in the book. I have a teacher friend who sponsors an after-school “free thought” club for her students who are atheists, agnostics, or similar. This opinion would permit the school to shut down such a club pretty easily. The chilling effect that decisions like this might have on innovative teaching and the encouragement of independent thought is troubling.

Don’t get me wrong: it drives me crazy when school teachers use their position as an opportunity to preach politics or whatever other message they personally want to convey. But there is a serious down side to this decision as well. I think a better solution is to allow teachers to express their religious views, even during class time, so long as those opinions are clearly labeled as the teacher’s own, and not as the government’s official position, and so long as it is not really disruptive to the educational process. This alone would teach an important lesson. After all, if Mayer was trying to introduce her students to the idea of political protest and open debate that (supposedly) lies at the heart of the American Constitution, it’s more than a little disturbing to see a government agency retaliate against her for expressing her opinion.

My concerns are not well thought out, and are only policy-based. I can’t say that the Mayer decision is wrong on First Amendment grounds. But I think there are serious downsides to seeing teachers as nothing more than mouthpieces for the school board, and we should keep them in mind.