Week+3+Judicial+Review

=Informal Case Description:= Ms. Paca was a probationary elementary school teacher. During a “current events” session in her class, a student asked whether she participated in political demonstrations. Ms. Paca told her students that when she passed a demonstration against the war in Iraq and saw a placard that said “Honk for Peace,” she honked her horn to show support. When the students told their parents about the discussion, some complained to the Principal. Ms. Paca's contract was not renewed and she claims it was because of this incident. She says she was exercising her free speech rights and asserted principles of "academic freedom." The school said that since the discussion took place during class hours and as a part of her official duties, she had no right to express her personal opinions. (This is a real case, decided by the Court of Appeals in 2007). = = =__Team Brainstorming__:=

Use the chart below to contribute key points, and add questions or additional comments as needed:

 * ===Team Member=== || === Does Ms. Paca have a case against the school for wrongful termination? === || === Supporting Evidence === || === Does the school system have the right to discipline Ms. Paca for expressing her opinions? === || === Supporting Evidence === ||
 * Ellen || No || According to Mayer v. Monroe County Community School Corp.(2007) this is probably not protected. If this discussion was part of the curriculum and followed school board procedures for controversial topics, it may be protected. || Yes || According to Calef v. Budden (2005) a teacher can be disciplined for expressing political views in class. According to the Pickering test, this speech was not protected because the teacher was not speaking as a private citizen, but in her official capacity. ||
 * Tara || Yes || In a previous case involving war protest, James v Board of Educ. of Central School Dist. No. 1, Addison it was determined that a teacher had the right to wear a black armband in class in protest against American Involvement in Vietnam. This would appear to be an ongoing opinion statement, with more potential disruption to school functioning than a single opinion statement made in response to a student's questioning. || Yes || As long as school curriculum states that personal opinions are not to be expressed, while multiple sides of an issue are presented. ||
 * Autumn ||  ||   ||   ||   ||
 * Stacy || Probably not-- but I sure think she should!


 * o) || The reason why not: The bottom line is that the curriculum didn't call for Paca to express her opinion, so she didn't really have the contractual right to do so.

In most of the cases reviewed, the courts have not protected the speech of teachers because the speech was not considered a "matter of public concern". Likewise, consideration has been given to the degree of disruption caused by "public furor", which can ultimately have a detrimental impact on others involved, but also on the teacher's ability to perform his/her duties. Proving all of this can be a challenge, but not impossible. Of course, that doesn't matter if the courts refuse to hear the case, or if they determine that rights which are considered "absolute" for all US citizens are actually negotiable for teachers.

The teacher does have a case based on these cases, if certiorari were to have been considered:

In //Pickering v. Board of Education of Township High School District (Pickering)//, the finding called for " a balance between the interests of the teacher, as a citizen in commenting on questions of public concern and interests of the State as employer." (Russo, 2006)

In //Pickering//, the following factors were considered:
 * He had a right to speak out as a private citizen about members of public concern.
 * There was no direct working relationship between Pickering and those whom he opposed.
 * The statements he shared did not have a detrimental impact on the administrators involved.
 * The statements did not have a negative impact on his ability to perform his duties. (Russo, 2006)

The court judgments from this case have had a profound impact on decision making in similar cases.

In //Mt. Healthy City Board of Education v. Doyle (Doyle//), the court made it's decisions based on whether there was a "clear connection" that the teacher's words played a "substantial" role in the Board's decision not to renew. In this particular case, the teacher was expressing views outside of the school house, but the BOE was charged to prove that the non-renewal would have occurred even if the teacher hadn't expressed his views publicly. It's not clear in the summary whether this was the only reason that they opted not to renew Paca's contract.

A few questions came to mind as I looked for similar cases based on a teacher's First Amendment rights:
 * Does the statement made by the teacher involve "matters of public concern"? Who decides what is and what is not such a matter?
 * Was the stance that her contract was not renewed due to the expression of her stance about the war clearly documented as the only reason for non-renewal?
 * Would the BOE have renewed her contract under any other circumstances?
 * Did the system, in fact, have anything in writing stating that she could or could not speak about her own opinions during a current event unit? Additionally, was the unit part of the curriculum, or was is something she added on because she thought it was important?

EDITORIAL... because I can't help myself:

I tend to think, in this case, that the teacher may have been entitled to due process, and perhaps should have been given a warning or reprimand per the administrative handbook, and that this particular action on the part of the BOE was extreme-- but that doesn't mean it was illegal. The proof would be in the teacher's contract, negotiated agreement, and perhaps in other board policies.

I understand why the gray area exists, but it bothers me. Can we really afford to fire teachers for admitting to children that they honk for peace when there is such a critical shortage of teachers? It isn't illegal to admit that you honk for peace, nor does it present the teacher in some unethical light as a poor role model.

I'm befuddled that courts don't protect teachers a bit more in this regard. In //Adler v. Board of Education,// Justice Douglas anticipated that the Supreme Court would consider academic freedom to be related to rights protected by the First Amendment. (Standler, 2000)

In //Wieman v. Updegraff,// the opinion of the Supreme Court was the teachers have the unique challenged to nurture "habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion." (Standler, 2000) The justice who heard this case went on to say that educators do this through "precept and practice" and through the classroom "atmosphere which they generate". (Standler, 2000) The Supreme Court found that teacher cannot do this "if the conditions for the practice of a responsible and critical mind are denied to them", and that they "must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma." (Standler, 2000)

According to the //1940 Statement on Academic Freedom and Tenure//, teachers should avoid controversial matter that is unrelated to the curriculum, and while they are free to express their opinions without fear from institutional censorship as private citizens, they should show restraint and indicate that they are not speaking for their institution. (American Association of University Professors, 1969) This does not, however, mean that they cannot hold or speak about political views on school property; a case in PA clearly protected a teacher's freedom of speech in such an instance when he was participating in political activities on school property beyond the school day because official polling places are located on school property. (Russo, 2006) This finding clearly makes it necessary for systems to define, in a way that respects teachers' constitutional rights, when, where, and under what circumstances teachers are able to speak freely beyond the content of their curriculum.

I must admit that I didn't know that my first amendment rights were exchanged for my salary when I signed my contract. That has to be THE most ridiculous thing I've ever read.

Gonna go take my blood pressure now! :o) || Yes || The school can ask teachers not to give voice to their personal opinions, or to speak as "private citizens" on issues of "public concern" during instructional time. They cannot discipline her for honking her horn off-duty, but can discipline her for talking about it in the classroom. The school system's stance would be stronger if, in fact, the system had a clear statement of expectations and policies related to expression of personal views, including politics, religion, and life style. Such statements can be held as legally binding contracts, as was the case in //Green v. Howard University.// (AAUP, 2007) ||

Questions:

 * What did the rest of the discussion consist of during the lesson? Was a balanced ideology presented? Was the current events discussion about political demonstrations consistent with the curriculum? Was the teacher following school board procedures for discussing controversial topics in the classroom? (ET)
 * Under what circumstances are teachers allowed to share their opinion? I feel that opinions are shared with students often and while statements must be balanced with other types of opinions, it seems that this is not an area that is fully understood or often communicated to staff members by administration. (TW)
 * Is there are difference between academic freedom afforded to a university professor and that afforded to a teacher in elementary, middle, or high school? For that matter, is there a difference between the academic freedom afforded to professors at a private school or university vs. a public school or university? Is academic freedom a first amendment right... or not? And if it is, doesn't it apply in all settings in the US?? Is it really possible to "give up" your right to free speech by agreeing to be a teacher? (SB)

**Our challenges with this process:**
= = =__Legal Summary:__=
 * I could not find any references to "academic freedom" in order to determine what impact that would have on the case. (ET)
 * I couldn't find the actual case, and felt like I was missing a bunch of details that would have made it more evident whether Paca actually had a case. I couldn't find the name "Paca" in any searches, but a similar case for a teacher named Meyers was rejected by the Supreme Court. (SB)

I don't know if we need this or not, but it looks like it might be a good outline for when we are dividing up some responsibilities later on. (TW) I attempted to plug in what we have, but recommend just posting a clear link to our Wiki in the ELC for this assignment. The chart will tell our cohort more that an incomplete legal summary might. If, on the other hand, anyone actually found the information that is missing, knock your socks off! (SB) since we don't have the information and are completing more of an analysis than a summary, I am going to summarize our responses to each question to post in the thread. I think that is what the other teams have done as wel. (ET)

//Paca v. Board of Education//

Unknown Case Citation Number

2007

Ms. Paca was a probationary elementary school teacher. During a “current events” session in her class, a student asked whether she participated in political demonstrations. Ms. Paca told her students that when she passed a demonstration against the war in Iraq and saw a placard that said “Honk for Peace,” she honked her horn to show support. When the students told their parents about the discussion, some complained to the Principal. Ms. Paca's contract was not renewed and she claims it was because of this incident. She says she was exercising her free speech rights and asserted principles of "academic freedom." The school said that since the discussion took place during class hours and as a part of her official duties, she had no right to express her personal opinions.

Is "Academic Freedom" an absolute right protected by the First Amendment of the US Constitution?

Unknown Finding

Unknown Rationale

Sources:
American Association of University Professors (AAUP) & Association of American Colleges (AAC). (1969). //1940 Statement of principles on academic freedom and tenure with 1970 interpretive comments.// Washington, DC: AAUP. PDF downloaded on May 29, 2009 from http://74.125.47.132/search?q=cache:yPYqSkYpWsoJ:www.ahr.uiuc.edu/PDF%2520Form/1940.PDF+1940+act+on+tenure& cd=2&hl=en&ct=clnk&gl=us

American Association of University Professors (AAUP). (2007). //Academic freedom and the first amendment.// Washington, DC: AAUP. Retrieved on May 29, 2009 from http://www.aaup.org/AAUP/protect/legal/topics/firstamendment.htm.

Russo, C. J., & Reutter, E. E. (2006). //Reutter's The law of public education//. New York, NY: Foundation Press/Thomson/West.

Standler, Ronald B. //(1999, 2000). Academic freedom in the USA.// Retrieved on May 29,2009 from http://www.rbs2.com/afree.htm.