Steven Williams Case

[AAsch at aol.com]

In a message dated 12/6/2004 12:21:11 PM Pacific Standard Time, 
marty.lederman at comcast.net writes:


> In very brief:  Under the "government speech" doctrine, a state may require 
> its teachers, in their official capacities (i.e., while teaching), to hue to 
> the state's prescribed curriculum.  This is the majority view in the courts 
> of appeals -- that there is no Free Speech Clause right of indivdual teachers 
> to teach what they wish in the classroom -- although there is some recent 
> caselaw going the other way (principally in the Sixth Circuit, IIRC).

The Ninth Circuit came to the same conclusion using a slightly different 
analysis. In Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 
1994), the court found that preventing a teacher from discussing religion with 
his students did restrict his free speech rights, but that the state's 
compelling interest in avoiding an Establishment Clause violation justified the 
restriction. As the court wrote:

"The school district's restriction on Peloza's ability to talk with students 
about religion during the school day is a restriction on his right of free 
speech. Nevertheless, 'the Court has repeatedly emphasized the need for allowing 
the comprehensive authority of the States and of school officials, consistent 
with fundamental constitutional safeguards, to prescribe and control conduct 
in the schools.' Tinker v. Des Moines Indep. Community School Dist, 393 U.S. 
503, 506-O7, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). '[T]he interest of the 
State in avoiding an Establishment Clause violation 'may be [a] compelling' one 
justifying an abridgment of free speech otherwise protected by the First 
Amendment....' Lamb's Chapel v. Center Moriches Union Free School Dist., - U.S., 
113 S.Ct. 2141, 2148, 124 L.Ed.2d 352 (1993) (quoting Widmar v. Vincent, 454 
U.S. 263, 271, 102 S.Ct. 269, 275, 70 L.Ed.2d 440 (1981)). This principle applies 
in this case. The school district's interest in avoiding an Establishment 
Clause violation trumps Peloza's right to free speech."

Full text of case available at this address:

http://www.talkorigins.org/faqs/peloza.html

Allen Asch
erstwhile ACLU cooperating attorney
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