Honk for peace' case tests limits on free speech
SF Chronicle | May 15, 2007
When one of Deborah Mayer's elementary school students asked her on the eve of the Iraq war whether she would ever take part in a peace march, the veteran teacher recalls answering, "I honk for peace."
Soon afterward, Mayer lost her job and her home in Indiana. She was out of work for nearly three years. And when she complained to federal courts that her free-speech rights had been violated, the courts replied, essentially, that as a public school teacher she didn't have any.
As a federal appeals court in Chicago put it in January, a teacher's speech is "the commodity she sells to an employer in exchange for her salary." The Bloomington, Ind., school district had just as much right to fire Mayer, the court said, as it would have if she were a creationist who refused to teach evolution.
The ruling was legally significant. Eight months earlier, the U.S. Supreme Court had decided in a case involving the Los Angeles district attorney's office that government employees were not protected by the First Amendment when they faced discipline for speaking at work about controversies related to their jobs. The Chicago appeals court was the first to apply the same rationale to the classroom, an issue that the Supreme Court expressly left unresolved.
But legal analysts said the Mayer ruling was probably less important as a precedent than as a stark reminder that the law provides little protection for schoolteachers who express their beliefs.
As far as the courts are concerned, "public education is inherently a situation where the government is the speaker, and ... its employees are the mouthpieces of the government," said Vikram Amar, a professor at UC's Hastings College of the Law in San Francisco. Whatever academic freedom exists for college teachers is "much, much less" in public schools, he said.
A recent case from a Los Angeles charter school offers more evidence of the limits teachers face in choosing curricula or seeking redress of grievances. The school's administrators forbade seventh-graders from reading aloud at a February assembly the award-winning poem "A Wreath for Emmett Till," about a black teenager beaten to death by white men in 1955.
In an online guide to teaching the poem in grades seven and up, publisher Houghton Mifflin recommends telling students that it will be disturbing; administrators said they feared it would be too much for the kindergartners in the audience and then explained that Till's alleged whistle at a white woman was inappropriate. When social studies teacher Marisol Alba and a colleague signed letters of protest written by students at the largely African American school, both teachers were fired.
The Mayer ruling was disappointing but not surprising, said Michael Simpson, assistant general counsel of the National Education Association, the nation's largest teachers' union. For the last decade, he said, federal courts "have not been receptive to arguments that teachers, both K-12 and higher education, have free-speech rights in the classroom."
That's unacceptable, said Mayer, 57, who now teaches seventh-graders in Haines City, Fla. She said she's scraped up enough money, by selling her car, to appeal her case to the Supreme Court, though she doubts the justices will review it.
"If a teacher can be fired for saying those four little words -- 'I honk for peace' -- who's going to want to teach?" she asked. "They're taking away free speech at school. ... You might just as well get a big television and set it in front of the children and have them watch, (using) the curriculum the school board has."
On the other hand, said Francisco Negrón, lawyer for the National School Boards Association, if teachers were free to express their viewpoints in class, school boards would be less able to do their job of determining the curriculum and complying with government demands for accountability.
"Teachers bring their creativity, their energy, their skill in teaching the curriculum, but ... a teacher in K-12 is really not at liberty to design a curriculum," said Negrón, who filed arguments with the court in Mayer's case supporting the Bloomington school district. "That's the function of the school board."
The incident occurred in January 2003, when Mayer was teaching a class of fourth- through sixth-graders at Clear Creek Elementary School. As Mayer recalled it later, the question about peace marches arose during a discussion of an article in the children's edition of Time magazine, part of the school-approved curriculum, about protests against U.S. preparations for war in Iraq.
When the student asked the question about taking part in demonstrations, Mayer said, she replied that there were peace marches in Bloomington, that she blew her horn whenever she saw a "Honk for Peace" sign, and that people should seek peaceful solutions before going to war.
A student complained to her father, who complained to the principal, who canceled the school's annual "Peace Month" observance and told Mayer never to discuss the war or her political views in class.
Mayer, who had been hired after the semester started and had received a good job evaluation before the incident, was dismissed at the end of the school year. The school said it was for poor performance, but the appeals court assumed that she had been fired for her comments and said the school had acted legally.
"Teachers hire out their own speech and must provide the service for which employers are willing to pay," a three-judge panel of the Seventh U.S. Circuit Court of Appeals said Jan. 24. "The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials."
Mayer, the court said, was told by her bosses that she could teach about the war "as long as she kept her opinions to herself." Like the Los Angeles district attorney's employee whose demotion led to the Supreme Court's 2006 ruling, the appellate panel said, Mayer had no constitutional right to say anything on the job that conflicted with her employer's policy.
Mayer's lawyer asked for a rehearing, saying the evidence was clear that the school had no such policy when Mayer answered the student's question. The court denied reconsideration in March without comment.
Mayer, who had taught for more than 20 years, couldn't afford to keep her Indiana home after being fired and left the state. She got another teaching job in Florida, but lost it after disclosing her previous dismissal, and didn't get another position until last fall.
As all parties to Mayer's case recognize, her statements would have been constitutionally protected and beyond the government's power to suppress if she had been speaking on a street corner or at a public hearing.
But in the classroom, as in the workplace, courts have upheld limits on speech. In both settings, past rulings have taken into account the institution's need to function efficiently and keep order, and the rights of co-workers and students not to be subjected to unwanted diatribes.
In 1969, the Supreme Court upheld a high school student's right to wear a black armband as a silent protest against the Vietnam War and barred schools from stifling student expression unless it was disruptive or interfered with education. The court retreated from that standard somewhat in a 1988 ruling upholding censorship of student newspapers, and will revisit the issue in a pending case involving an Alaskan student who was suspended for unfurling a banner outside the school grounds that read, "Bong Hits 4 Jesus."
The Supreme Court has never ruled on teachers' free speech. In lower courts, teachers have won cases by showing they were punished for violating policies that school officials never explained to them beforehand or invented after the fact. A federal appeals court in 2001 ruled in favor of a fifth-grade teacher in Kentucky who was fired for bringing actor Woody Harrelson to her class to discuss the benefits of industrial hemp, an appearance that school officials had approved.
But teachers who were on notice of school policies they transgressed have usually lost their cases. In one Bay Area case, in August 2005, a federal judge in San Jose rejected arguments by Cupertino elementary school teacher Stephen Williams that his principal had violated his freedom of speech by prohibiting him from using outside religious materials in history lessons.
Unless the Supreme Court takes up Mayer's case, its legal effect is limited to federal courts in Illinois, Indiana and Wisconsin, the three states in the Seventh Circuit. But Amar, the Hastings law professor, and others said the ruling could be influential elsewhere because there are few appellate decisions on the issue, and because the author, Chief Judge Frank Easterbrook, is a prominent conservative jurist.
"Very few schools are going to be that harsh in muzzling or silencing their teachers," but the ruling indicates they would be free to do so, Amar said.
Simpson, the National Education Association's lawyer, said the ruling, though within the legal mainstream, was bad for education because teachers are not "hired to read a script." The case might interest the Supreme Court, and the NEA will probably file a brief in support of Mayer's appeal should the justices take the case, he said.
Beverly Tucker, chief counsel of the NEA-affiliated California Teachers Association, said she doubts that federal courts in California would take as conservative a position as the court in Mayer's case. But she expects school districts to cite the ruling in the next case that arises.
"If I were a public school teacher, I would live in fear that some innocuous remark made in the classroom in response to a question from a pupil would lead to me being terminated" under such a ruling, Tucker said.
As for Mayer, she isn't sure what rankles her most -- the impact on her life, the stigma of being branded a rogue teacher, or the court's assertion that a teacher's speech is a commodity purchased by the government.
"My free speech," she said, "is not for sale at any price."
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