Evans-marshall v. Bd. Of Educ. Of The Tipp City Exempted Vill. Sch. Dist.
| Citation | 624 F.3d 332 |
| Decision Date | 21 October 2010 |
| Docket Number | No. 09-3775.,09-3775. |
| Parties | Shelley EVANS-MARSHALL, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the TIPP CITY EXEMPTED VILLAGE SCHOOL DISTRICT; Charles W. Wray; John T. Zigler, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
ON BRIEF: Lynnette Dinkler, Jamey T. Pregon, Dinkler Pregon LLC, Dayton, Ohio, for Appellees. Shelley Evans-Marshall, Humble, Texas, pro se.
Before: SILER and SUTTON, Circuit Judges; CLELAND, District Judge. *
Does a public high school teacher have a First (and Fourteenth) Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials”? Yes, says the teacher, Shelley Evans-Marshall. No, says the Tipp City Board of Education. Because the right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made “pursuant to” their official duties, Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), we affirm the judgment rejecting this claim as a matter of law.
In 2000, the Tipp City Board of Education hired Evans-Marshall to teach English and to supervise Tippecanoe High School's literary magazine, BirchBark, for the 2000-2001 school year. The Board renewed her contract for the 2001-2002 school year, when Evans-Marshall taught English to 9th and 11th grade students and a creative writing course to 11th and 12th grade students. At the beginning of the fall semester, Evans-Marshall assigned Ray Bradbury's Fahrenheit 451 to her 9th graders. To the end of exploring the book's theme of government censorship, she distributed a list compiled by the American Library Association of the “100 Most Frequently Challenged Books.” Students divided into groups, and Evans-Marshall asked each group to pick a book from the list, to investigate the reasons why the book was challenged and to lead an in-class debate about the book. Two groups chose Heather Has Two Mommies by Lesléa Newman.
A parent complained about Heather Has Two Mommies, and the principal, Charles Wray, asked Evans-Marshall to tell the students to choose a different book. She complied, explaining to her class that “they were in a unique position to ... use this experience as source material for their debate because they were in the ... position of having actually experienced censorship in preparing to debate censorship.” R.31-2 at 342-43. After the class completed the Fahrenheit 451 unit, Evans-Marshall assigned Siddhartha by Hermann Hesse and used it as the basis for in-class discussions about “spirituality, Buddhism, romantic relationships, personal growth, [and] familial relationships.” R.31-1 at 101.
At the October 2001 meeting of the school board, twenty-five or so parents complained about the curricular choices in the schools, including Siddhartha and the book-censorship assignment. The next day, Principal Wray called a meeting of the English department and told Evans-Marshall that she was “on the hot seat.” R.31-1 at 64. Nearly 100 parents, as well as the local news media, attended the board's November meeting. For over an hour, parents expressed concerns about books in the curriculum and in the school libraries. While the parents mentioned many books, they raised particular objections to the materials in Evans-Marshall's classroom and her teaching methods. Superintendent John Zigler explained that the school board had purchased many of the materials, including Siddhartha, several years before, making it difficult to criticize Evans-Marshall for teaching a book the school board had bought. “You should be embarrassed,” one parent responded, referring to the explicit language and sexual themes in the book. R.46 at 1:32:20. Another parent complained that she had asked for an alternative assignment-instead of Siddhartha-and “was given three books,” two of which “were for a four-to-eight year old.” R.46 at 1:33:40. “I'm not going to put my daughter through this,” the parent added, explaining that she thought Evans-Marshall was “punish[ing] my daughter.” R.46 at 1:33:40. A group of parents presented the board with a 500-signature petition calling for “decency and excellence” in the classroom. R.46 at 0:29:00, 0:55:00.
The meeting was not one-sided. A member of the board-a parent himself-warned that the school district's policies about potentially objectionable material “have to be well thought out because what you might find offensive, I might not.” R.46 at 1:41:40. Another board member reminded the group that, as elected officials, the board “must walk the middle of the road to some extent,” even if the community might “err ... on the conservative side.” R.46 at 0:20:45. And a parent who made a formal statement said that he “[did not] condone” the behavior of some of the more vocal parents and trusted that school officials “want what's best for our kids.” R.46 at 0:22:00.
The matter did not end there. In teaching creative writing, Evans-Marshall maintained a file of student writing samples that she shared with students who asked for additional guidance on assignments. Running low on copies of some of the samples, she sent three of them to support staff to be copied. A member of the copy room staff, apparently not a friend, showed the writing samples to Wray, saying he “ought to read this.” R.33-1 at 76. After reading the papers, Wray called Evans-Marshall to his office. When she arrived, he waved two of the writing samples in his hand, one a first-hand account of a rape, the other a story about a young boy who murdered a priest and desecrated a church. “[A]re you going to use these in class after everything that's happened?” he shouted. R.31-1 at 84. Evans-Marshall explained that the writing samples were not intended for in-class distribution and that she would refrain from sharing the papers if he wanted. Wray said that he did not like the materials she was using in her classroom or the themes of her in-class discussions and that he “intended to rei[n] it in.” R.41 at 24-25.
The two soon had another argument in the school library about Evans-Marshall's plans to give a final exam involving group discussions and student self-evaluations. Evans-Marshall asked Wray to give her a model exam so she could “give [him] back exactly what [he] want[ed],” R.31-1 at 43, prompting Wray to call her a “smart a-,” id. at 41-42. The next day, Evans-Marshall complained to Superintendent Zigler about Wray's behavior. Zigler told her to meet with Wray after the semester break to work things out and offered to speak with Wray in the meantime. He also said that she should feel free to file a formal grievance if things had not been worked out by January.
Things did not work out by January. Wray and Evans-Marshall talked, but they fell back into the same channels of disagreement. Evans-Marshall asked whether there was anything aside from her curricular decisions that bothered Wray. “I'll see what other issues I can come up with,” Wray responded, “for your evaluation next week.” R.31-1 at 52-53. Wray's evaluations criticized Evans-Marshall's attitude and demeanor as well as her “[u]se of material that is pushing the limits of community standards.” R.31-5 at 38-39. Evans-Marshall filed written objections to Wray's evaluations and a grievance with Superintendent Zigler.
At its March 2002 meeting, the school board voted unanimously not to renew Evans-Marshall's contract. She requested an explanation, and the school board sent her a letter on April 9, 2002, saying that her non-renewal was “due to problems with communication and teamwork.” R.31-6 at 10. At Evans-Marshall's request, the board held a formal hearing about the employment decision. Principal Wray, Superintendent Zigler and Evans-Marshall all testified, and the board again voted unanimously not to renew her contract.
In March 2003, Evans-Marshall filed this § 1983 action against the school board, Wray and Zigler. She alleged that the school board and other defendants had retaliated against her “curricular and pedagogical choices,” infringing her First Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials.”
R.1 ¶¶ 32, 36. The defendants moved to dismiss the complaint for failure to state a claim under Civil Rule 12(b)(6), but the district court held that Evans-Marshall had sufficiently alleged a First Amendment violation. We affirmed. Evans-Marshall I, 428 F.3d 223.
After discovery by both sides, the defendants again moved for summary judgment, arguing that the Supreme Court's intervening decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and the unrebutted facts gleaned from discovery foreclosed Evans-Marshall's claim. In the alternative, they sought summary judgment on the ground that the school board should prevail under the balancing test announced in Pickering v. Board of Education, 391 U.S. 563, 572-73, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), or that there was no causal link between Evans-Marshall's curricular choices and the non-renewal of her contract. The district court granted the defendants' summary judgment motion. It declined to apply Garcetti to the dispute and held that...
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