In Sharper Focus. Guest Post on the Issues Raised in Freshwater v. Mount Vernon City School District Board of Education.

On February 27, 2013, the Supreme Court of Ohio heard the case of Freshwater v. Mount Vernon City School District Board of Educationwhich involved the firing of an eighth grade public school science teacher, allegedly for teaching creationism in science class and for insubordination, which raises fascinating issues about both the Free Exercise and the Establishment Clauses of the First Amendment, and the right of school boards to insist upon adherence to their curricula. Professor Ronna Greff Schneider, my colleague at the University of Cincinnati College of Law who teaches Constitutional law, and seminars on Education Law and on the First Amendment, has written this guest post on the issues raised in the case.  Read the blog’s analysis of the oral argument in the Freshwater case here.

Professor Schneider’s Guest Post

There are four major potential issues that the Supreme Court of Ohio could examine in resolving Freshwater v. Mount Vernon City School District Board of Education, which was argued on  February 27, 2013. How the Court frames the issue–whether under the Free Speech Clause or under the Establishment Clause–may be critical and ultimately determinative of the case’s outcome.

The first issue examines whether there is any constitutional protection under the Free Speech Clause of the First Amendment of the U.S. Constitution for Mr. Freshwater’s criticism of evolution, a subject that was part of the mandatory science curriculum. This issue involves a two pronged analysis.  The first prong examines whether an eighth grade teacher has any free speech or academic freedom right to speak about curricular matters in the classroom beyond or in conflict with what the school board says has to be taught. The second prong examines a different line of cases, namely those involving the scope of free speech rights of public employees generally and whether these cases preclude constitutional protection for such classroom speech.

The second issue is whether Mr. Freshwater’s classroom critique of evolution and his other classroom comments are considered religious in nature, and thus violate the Establishment Clause of the First Amendment. The Supreme Court of Ohio can avoid deciding this Establishment Clause issue if it first determines that Mr. Freshwater had no First Amendment right to critique or criticize evolution in his science class. Under this approach, the Free Speech Clause does not insulate Mr. Freshwater from any adverse action taken by the school board, regardless of the nature or character of his expression.

The third issue involves a determination of the scope of any right an eighth grade public school science teacher has to place material with religious content in his public school science classroom.  Mr. Freshwater posted a picture of political leaders engaged in prayer in his classroom, placed a Bible on his desk and another Bible and a book entitled Jesus of Nazareth on the classroom laboratory counter. Mr. Freshwater got the latter two books from the school’s library. This issue involves both an examination of any teacher free speech rights and a determination of whether such action violates the Establishment Clause.

Fourth, the Freshwater case raises the issue of the scope of the federal Equal Access Act and whether Mr. Freshwater violated that Act by his actions as the faculty sponsor of the student group, Fellowship for Christian Athletes.

Freedom of Expression and Academic Freedom

The U.S. Supreme Court has stated in several cases that freedom of expression is a very important right in American education. Academic freedom, described in various ways, including as a special concern of the First Amendment, is likewise a valued part of this educational system. The Court has not, however, discussed the extent to which these rights apply to a secondary school teacher’s in-class speech regarding curriculum.  While there are many differences between secondary and higher education, two such differences are perhaps most significant in this regard – secondary school attendance is mandatory and the student body is younger, less mature, and more vulnerable to indoctrination than its higher education student body counterpart. Probably for both of these reasons, teachers’ free speech rights appear to be greater in the higher education than in the K through 12 context.

The Student Speech Model

The Supreme Court has, however, addressed the issue of the scope of free speech in the secondary school context in four major decisions, none of which directly involved teacher speech. Two of these decisions would appear to be most relevant – Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), noting that neither teachers nor students give up their constitutional rights when they pass through the schoolhouse door, and holding that a school cannot censor a student’s personal speech unless it can reasonably forecast a material and substantial disruption or an invasion of the rights of others, and Hazelwood Independent School District v. Kuhlmeier, 484 U.S. 260 (1968), in which the Court stated that school sponsored speech could be restricted if it is “reasonably related to legitimate pedagogical concerns.” Teacher classroom speech could be viewed as school-sponsored and the school would certainly have legitimate pedagogical concerns in implementing its curriculum as well as in avoiding a violation of the Establishment Clause.

The U.S. Supreme Court has not expressly stated whether the various analytical approaches of these holdings involving student speech are applicable to teachers and other employees. Lower federal courts are divided on the issue.

Mr. Freshwater relies on Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982), for asserting his right to academic freedom in the classroom. This case is not, however, about the classroom or curricular speech. The Pico Court invalidated the removal of books from a public school library because of opposition to their content.  The opinion is only a plurality opinion and the Court noted in the case that there are differences between curriculum and the library.

Any argument based on Mr. Freshwater’s academic freedom may also be weakened by the decisions of some lower federal courts, including the U.S. Court of Appeals for the Sixth Circuit in Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, 624 F.3d 332 (6th Cir. 2010), holding that such a right belongs to the educational institution and not to the teachers whose job is to teach the mandated curriculum.  Some lower courts have also reasoned that any academic freedom does not apply in the primary or secondary level.

Limitations on Speech of Public Employees

Even assuming that such an academic freedom right exists with regard to some teacher speech at the secondary school level, a different line of U.S. Supreme Court cases addressing the scope of public employee speech generally may preclude free speech protection for a secondary school teacher’s classroom curricular speech. In its most recent decision in this area, Garcetti v. Cabellos, 547 U.S. 410 (2006), the U.S. Supreme Court held that a public employee whose speech is made pursuant to the employee’s official duties is not protected by the Free Speech Clause. Curricular speech would certainly appear to qualify as a teacher’s “official duties.” The finding of any academic freedom right and the limitation imposed by Garcetti may thus be in tension.

However, the Supreme Court in Garcetti did not decide two crucial issues: (1) how to determine what constitutes an employee’s official duties; and (2) whether the “official duties” rule applies in the academic context where it could be argued that the essence of the academic job – teaching and scholarship – will always involve speech made pursuant to official duties. The Court found no reason to address the first issue because the parties in the case agreed that the speech in question did pertain to the employee’s official duties.  A teacher’s classroom criticism of mandated curriculum should constitute speech made pursuant to a teacher’s official duties in teaching.

With regard to the second issue in Garcetti, the Supreme Court simply noted without further elaboration that “additional constitutional interests” may be present in the academic context that are not present in other public employee speech cases. The Court therefore did not determine whether there should be an academic exception to its ruling in Garcetti and if so, whether any such academic exception would apply only to higher education or to elementary or secondary education as well. Thus in the absence of some applicable academic context exception, Garcetti would appear to support the conclusion that a teacher would not be protected by the First Amendment with regard to curricular speech made in the classroom. No state court in Ohio has cited or discussed Garcetti.

The Sixth Circuit opinion in Evans-Marshall held that a public school secondary teacher is speaking pursuant to her official duties when she selects curricular material that is outside the regular curriculum and such classroom speech is therefore not protected by the First Amendment Free Speech Clause. The Appeals Court did not find any academic exception applicable in this context. If the Supreme Court of Ohio accepts the reasoning and conclusion of the Sixth Circuit’s Evans-Marshall decision, it should eliminate any free speech right of Mr. Freshwater as a public employee to criticize the curricular material that he is mandated to teach because such speech would be expressed pursuant to the teacher’s official duties and there is no applicable academic exception to hold otherwise.  Thus, whether the teacher’s speech critical of evolution was religious in nature would be irrelevant. Any criticism, religious or otherwise, would not be protected by the First Amendment Free Speech Clause. If it chooses this approach, the Supreme Court of Ohio could avoid assessing the religious nature of such criticism and whether it thus violated the Establishment Clause.

If, however, the teacher’s criticism of evolution is protected by the free speech guarantees of the U.S. Constitution, either under the student speech model, some notion of academic freedom, or some academic exception to Garcetti’s official duties rule, then the Supreme Court of Ohio must address this second major issue, namely determining whether the teacher’s criticism of evolution or discussion of any proposed alternative to evolution is religious in nature in violation of the Establishment Clause, regardless of what name or label is attached to the teacher’s critique. Lower courts carefully scrutinize the context and circumstances surrounding the teacher’s speech in making this determination. The cases are generally fact specific.

Types of Opposition to Teaching Evolution

Opposition to the teaching of evolution in the classroom has taken several different forms in the cases brought to the courts before Freshwater. These include: (1) a teacher’s refusal to teach evolution as mandated by the curriculum; (2) a critical analysis of the “problems” with the “theory” of evolution; (3) provision of some form of “disclaimer” before evolution is taught, either oral or in the form of a sticker placed on textbooks discussing evolution, to alert students that the school is not endorsing evolution and that evolution is not the only acceptable explanation regarding the origin of life; (4) efforts to add to the science curriculum the teaching of “alternatives” to evolution in the form of creationism or Intelligent Design that are generally consistent with the Biblical account of creation found in the Book of Genesis; or (5) refusal to include evolution in the curriculum at all.

The U.S. Supreme Court has twice ruled against limitations on the teaching of evolution. The Supreme Court struck down an anti-evolution statute in Epperson v. Arkansas, 393 U.S. 97 (1968), and invalidated a Louisiana law that mandated the teaching of creation science whenever evolution was taught in Edwards v. Aguillard, 482 U.S. 578 (1987).  In a variety of circumstances, lower federal courts have also generally held that  opposition to or limitations on the teaching of evolution was religious in nature and violated the Establishment Clause. Courts have reached this conclusion either because such opposition did not have a secular purpose or because it had the impermissible effect of advancing religion. These are the first two prongs of the three prong test under Lemon v. Kurtzman, 403 U.S. 602 (1971), the most commonly used test for the Establishment Clause. The effect prong has sometimes been described in terms of whether the state’s action has the primary effect of conveying a message of endorsement or disapproval of religion or a particular religion. Endorsement has also been used as an independent analytical test. The third prong, not typically used in this type of case, examines whether the action in question fosters an excessive entanglement between the state and religion. Many lower courts continue to use this third prong in various types of cases, despite the fact that the Supreme Court subsequently eliminated it as an independent prong and made it a factor to consider under the second prong.

The singling out of evolution for criticism – as was the case with Mr. Freshwater – has been used to demonstrate that such criticism is an effort to promote religion rather than to foster academic freedom or critical thinking. In his casebook, Creationism in the Classroom, Edward J. Larson, University Professor at Pepperdine University, has discussed the possible constitutional significance of such “singling out” and stated that “[n]aming other subjects, especially ones that are controversial for non-religious reasons, may lessen the likelihood that these laws violate the Establishment Clause.”  

The Establishment Clause, as construed by numerous U.S. Supreme Court decisions, prohibits public schools from teaching religion in the classroom.  It does not prohibit teaching about religion, which some argue as a matter of policy is educationally desirable, especially in a pluralistic society. This distinction between teaching religion and teaching about religion is a constitutionally significant substantive distinction that transcends what may appear to be mere pedagogy. An argument based on viewpoint discrimination under the Free Speech Clause, available in other areas where religious expression is at issue, is therefore probably of little value with regard to curricular matters where religion may not be taught.

Mr. Freshwater is correct when he argues that the criticisms of evolution he offers to students do not violate the Establishment Clause simply because they are consistent with his religious beliefs. However, decisions from both the U.S. Supreme Court and the lower federal courts have generally consistently held that such critiques of evolution are unconstitutional because they are themselves religious in nature and promote certain religious beliefs. Mr. Freshwater maintains that placing a limit on his ability to teach an explanation regarding the origin of life merely because such a theory is consistent with his religious belief demonstrates constitutionally impermissible “hostility to religion.”  This assertion is incorrect – from both a factual and a constitutional point of view.  The prohibition against the state teaching religion in the classroom through its employees does not demonstrate “hostility.”  Rather the prohibition dictated by the Establishment Clause merely requires that the inculcation of religious tenets or the teaching of the veracity of such tenets may not be done by the state. This is not “hostility to religion” any more than the U.S. Supreme Court’s determination that the state cannot engage in school prayer.  Constitutional limitation on the presentation of religious explanations regarding the origin of life does not prevent students or teachers from having such beliefs. It is only a requirement that such discussion or beliefs do not belong in the public sphere of the public school classroom.

The school board did not place any limits on Mr. Freshwater’s religious beliefs. He was simply not permitted to use those beliefs to criticize the implementation of the mandated school curriculum in his science class. That other types of explanation or discussion are not expressly so limited by the Constitution does not render such prohibition under the Establishment Clause as hostile to religion.

Religious Displays in the Classroom.  

The U.S. Supreme Court has not really provided any specific guidance as to the constitutionality of Mr. Freshwater’s placement in his classroom of two Bibles, a book, Jesus of Nazareth, and a poster of national leaders praying – the third major issue posed by the Freshwater case. The only Supreme Court precedent with regard to religious displays in the classroom involves the Ten Commandments. The Supreme Court struck down the mandatory display of the Ten Commandments in public school classrooms in Stone v. Graham, 449 U. S. 39 (1980), despite the fact that the posters of the Ten Commandments were privately paid for and were required to include a notation concerning the secular nature of the Commandments as a foundation for the legal code of Western Civilization and American common law. Despite that notation, the Court held that the Ten Commandments are a sacred religious text in certain religions and its mandatory display violated the Establishment Clause.

The Supreme Court subsequently decided two cases on the same day in June, 2005 regarding the display of the Ten Commandments on public property – with opposite results. However, neither of these cases dealt with the school classroom context as had Stone and the two 2005 decisions, while using different analytical approaches to reach their results, support the continuing validity of Stone.

 The controversy in Mr. Freshwater’s class of course did not involve any display of the Ten Commandments.  The Supreme Court has not, however, issued any other decision dealing with a teacher’s classroom decorations and thus the case law dealing with the Ten Commandments is certainly helpful if not definitive.  The lower federal courts, both before and after the recent decisions involving the Ten Commandment displays, have reached mixed results with regard to the constitutionality of displays of religious material or materials with some religious content in the classroom or school.

Mr. Freshwater has correctly noted that the presence of the Bible in a classroom is not automatically unconstitutional. The Bible may be used for constitutional purposes in the curriculum, such as teaching the Bible as literature or explaining a particular set of religious beliefs. However, the Bible’s presence in a science classroom would not ordinarily seem to embrace such constitutional purposes.  Similar reasoning would also seem to apply with regard to the book, Jesus of Nazareth. Context and surrounding circumstances matter in the Establishment Clause analytical framework.  This was a science class, not a literature, philosophy or social studies class. That the books Mr. Freshwater placed in his science classroom came from the school library would not seem to be constitutionally relevant.  As the U.S. Supreme Court’s decision in Pico makes clear, there is a difference between the library and the curriculum.

The poster would appear to have both patriotic and religious components to it.  The Supreme Court has looked at the surrounding circumstances and context when deciding whether a display is religious in nature when it includes both patriotic or secular messages as well as religious content. Thus, the Supreme Court of Ohio’s decision regarding the poster display may be influenced by its decision regarding other material in the classroom as well as the actions taken by Mr. Freshwater in the classroom.

Mr. Freshwater as Faculty Sponsor

Finally, although apparently not a basis for the action taken against Mr. Freshwater, it should be noted that any reliance Mr. Freshwater may place for his actions on his role as faculty sponsor for the student group, Fellowship of Christian Athletes, is probably misplaced.  This is because while such a student group is permitted pursuant to the federal Equal Access Act, the statute and its regulations require that any faculty role involving a student religious group or activity must be limited to essentially a custodial role and not a participatory role.

Awaiting An Answer

Courts have consistently held that public schools have the authority to determine their curriculum.   The United States Supreme Court has twice rejected restrictions placed on the teaching of evolution – albeit in circumstances different from those presented by the Freshwater case. The Supreme Court of Ohio will have the opportunity to decide whether it will join other courts in upholding the right of public schools to insist that evolution be a part of its mandatory curriculum and that public school science teachers may not undermine that authority by negatively critiquing evolution in the classroom in a way that the Court determines promotes certain religious beliefs.


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