Steven Williams Case

[Marc Stern]

Who has the burden of proving which was which?
Marc Stern

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of A.E. Brownstein
Sent: Monday, December 06, 2004 5:47 PM
To: Law & Religion issues for Law Academics
Subject: Re: Steven Williams Case

 

I tend to agree with Marty's take here  -- I think this is basically a
due process issue -- but I'm not sure all courts agree. I think this was
the real issue in Cockrel (The teacher got sandbagged. When the
community got upset, the school punished her for doing something it had
given her permission to do.) But while I think Cockrel is really a due
process case, the Sixth Circuit treated it as a free speech case
involving employee speech rights (e.g. Pickering, Connick etc.). And I'm
not sure that the Sixth Circuit is alone in mixing these ideas up. 

But, to bring this back to the Williams case, all of this presupposes
that the teacher's comments were consistent with curriculum
requirements, or what everyone understood the curriculum requirements to
be. 
Mark says that in the Williams case, the complaint contends that
Williams was complying with curriculum requirements. If we are talking
about a teacher distributing historical materials that include
references to religion for the purpose of discussing them from an
historical perspective, I would think the teacher has a pretty good
argument. If we are talking about a teacher distributing historical
materials that include references to religion as a pretext for  starting
discussions intended to promote the teacher's own religious beliefs, I
think the school quire properly restricted such activities. I have no
basis for knowing what actually transpired in this case -- but as an
abstract legal matter, those two alternatives identify the poles of the
continuum.

Alan Brownstein
UC Davis


At 04:48 PM 12/6/2004 -0500, you wrote:



Interesting you should raise that distinction, Alan.  I think that there
really is a due process issue in discharging a teacher for classroom
speech or conduct that the teacher had every reason to think was
acceptable at the time and that only became "unacceptable," and worthy
of sanction, after the community objected.  This was the problem in the
Fourth Circuit Boring v. Buyncombe County case, too, and in Boring's
cert. petition, counsel focused on the denial of due process (to no
avail). 
 
But from the perspective of the free speech clause, what difference does
it make if the teacher is fired because her speech demonstrated (in the
school's view, after the fact) a lack of judgment, or whether she's
fired because her speech violated a specific ex ante curricular
prohibition?  Why should the former be entitled to greater
constitutional protection, apart from the fair-notice issue?

----- Original Message ----- 

From: A.E. Brownstein <mailto:aebrownstein at ucdavis.edu>  

To: Law & Religion issues for Law Academics
<mailto:religionlaw at lists.ucla.edu>  

Sent: Monday, December 06, 2004 4:39 PM

Subject: Re: Steven Williams Case

I don't think Cockrel is really inconsistent with Marty's earlier
statement that "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 individual teachers to teach what they wish in the
classroom." In Cockrel, the teacher had permission to invite the
speakers who caused the controversy  into her classroom and the school
district conceded that the presentations had educational value. The
school district did not argue that the plaintiff had taught material
that was outside of the curriculum. If she had, I think Marty is correct
that the school district could have required her to hue the line and
stick to the curriculum.

The only open question in this area, I think, is what happens when
teachers say things in brief statements during class that are not
expressly prohibited by district rules, but are arguably outside of the
curriculum,  Not every sentence spoken in a classroom relates to the
school's curriculum. There is some play in the joints -- particularly
with regard to the discussion of unanticipated current events. Once the
principal tells a teacher that particular comments are unacceptable
(e.g. stick to the curriculum), I think the teacher has no free speech
rights to continue a classroom discussion. What is less clear is whether
the teacher can be disciplined for the comments he or she expressed
before the principal instructed her to end the discussion.

Alan Brownstein

UC Davis







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