Millikan v. Board of Directors of Everett School Dist. No. 2

• Decision Date: 16 May 1980
• Docket Number: S,No. 2,No. 45771,2,45771
• Citation: 611 P.2d 414,93 Wn.2d 522
• Parties: Gordon W. MILLIKAN and Robert M. Petersen, Petitioners, v. BOARD OF DIRECTORS OF EVERETT SCHOOL DISTRICT NO. 2, Snohomish County, Washington and Everett School Districtnohomish County, Washington, Respondents.
• Court: Washington Supreme Court

Page 522

93 Wn.2d 522

611 P.2d 414

Gordon W. MILLIKAN and Robert M. Petersen, Petitioners, v. BOARD OF DIRECTORS OF EVERETT SCHOOL DISTRICT NO. 2,

Snohomish County, Washington and Everett School

District No. 2, Snohomish County,

Washington, Respondents.

No. 45771.

Supreme Court of Washington, En Banc.

May 16, 1980.

Cogdill, Deno & Millikan, Kent Millikan, Everett, for petitioners.

Perkins, Coie, Stone, Olsen & Williams, Bruce D. Corker, Seattle, for respondents.

WRIGHT, Justice.

This is an action by two high school teachers who claim their First Amendment rights have been abridged because they are not allowed to team-teach a Petitioners Gordon Millikan and Robert Petersen developed a method of teaching history known as "Global Studies," in which the class is divided into small groups to work with two teachers. Individual study, research and writing projects for each student are stressed. ¹

course according to their own plan. Defendant-respondent school board prevailed on summary judgment. The Court of Appeals dismissed the appeal for lack of an adequate record. Millikan v. Board of Directors, 20 Wash.App. 157, 579 P.2d 384 (1978). We reversed the Court of Appeals, remanded the matter to the trial court for supplementation of the record and retained the case for a decision on the merits. Millikan v. Board of Directors, 92 Wash.2d 213, 595 P.2d 533 (1979).

In 1973 a group of teachers, including petitioners, requested that a pilot program be instituted for the teaching of Global Studies as an alternative to a more conventional history course. The school district approved and implemented the pilot program. Subsequently, however, students were given a choice between conventional history and Global Studies. A vast majority chose the more conventional course, which resulted in fewer Global Studies classes. During the 1976 spring semester, Millikan was assigned to teach one traditional history class and four Global Studies classes. As a consequence of the student-preference registration the Global Studies program for the 1976 fall semester was reduced to one class. Millikan was required to teach his other four history classes in the conventional manner.

In the spring of 1976, Robert Petersen was transferred from his team-teaching assignment with Millikan to the science laboratory. Petersen alleges the new assignment was intended to destroy Global studies and to retaliate against Following adverse decisions at all levels of the grievance process, Millikan and Petersen appealed to the superior court pursuant to RCW 28A.88.010 and RCW 28A.88.015, which provide for de novo review of school board decisions, and RCW 28A.58.460-28A.58.480. In granting summary judgment for the school board, the trial court concluded it was being asked to review administrative matters. It held the decision to offer particular courses and to allow student preference in the selection of courses was the prerogative of the school board. The court also found there had been no First Amendment violation.

him for joining Millikan in the filing of a grievance regarding the student registration procedure.

Millikan and Petersen contend the trial court erred by granting the summary judgment, asserting the school district is not entitled to judgment as a matter of law and that there is a genuine issue of material fact. This issue raises three questions: (1) Do the restrictions imposed on petitioners' teaching violate their right to academic freedom? (2) Does the reassignment of Petersen abridge his First Amendment rights as a retaliation for filing a grievance? (3) Does the school district violate petitioners' right to equal protection by subjecting their course to student preference registration?

ACADEMIC FREEDOM

Petitioners argue the restrictions imposed upon their team-teaching methods and the requirement that they teach in the conventional manner violate their right to academic freedom. They assert that case law recognizes the right of a teacher to select teaching methods and materials. On the other hand, the school board asserts that a teacher has no right to select or use teaching methods or course materials contrary to administrative instructions.

The Supreme Court has long recognized that academic freedom at the college level is protected under the First Amendment. It only recently extended that protection to the noncollegiate level, however. In Tinker v. Des Moines First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Independent community School Dist., 393 U.S. 503 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Court found unconstitutional a ban on student black armbands worn to protest the Vietnam war. The Court stated:

393 U.S. at 506, 89 S.Ct. at 736.

Millikan and Petersen rely on a number of cases purportedly recognizing a teacher's substantive right to select teaching methods and materials. Sterzing v. Fort Bend Independent School Dist., 376 F.Supp. 657 (S.D.Tex.1972), remanded for reconsideration of relief granted, 496 F.2d 92 (5th Cir. 1974); Mailloux v. Kiley, 323 F.Supp. 1387 (D.Mass.1971), aff'd 448 F.2d 1242 (1st Cir. 1971); Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970); Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969). All of these cases involve discharge or suspension stemming from a high school teacher either having provided materials with a controversial content or making allegedly profane or objectionable remarks to students. In each case, the court was attempting to protect both the right of the teacher, as speaker, and the right of the student to receive the communication. These cases are not in point, however. Here the students have expressly indicated they do not wish to participate in the Global Studies course. Petitioners' case is undercut because the right they assert is independent from the students' rights.

Furthermore, in each of the above-cited cases the court found a due process violation because the teaching method had not been proscribed before the nonretention or firing. Since these factors are not present in the instant case the value of those cases is questionable as precedent for a teacher's right to choose materials and methods. See, e. g., Mailloux v. Kiley, 323 F.Supp. 1387, 1393 (suspension may As noted above, controversial statements and methods of conveying a point underlie the cases cited by petitioners. In the case at bar, however, the content of specific communications is not actually involved. At most, the effect of the student preference registration system is to force Millikan to teach courses in a more conventional manner. He acknowledges that neither his specific course material nor his technique have been disapproved. Instead, only a broad methodology and course approach has, in effect, been forbidden. Arguably, judicial nonintervention is called for. This conflict does not "directly and sharply implicate basic constitutional values." Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). But because of the novelty and importance of the question, we will directly confront the academic freedom issue.

be in order where teacher with notice uses a disapproved method not appropriate to teaching the subject).

The applicable cases take the position that a school district has authority to prescribe both course content and teaching methods. Adams v. Campbell County School District, Campbell County, Wyoming, 511 F.2d 1242 (10th Cir. 1975); Saunders v. Reorganized School District No. 2 of Osage County, 520 S.W.2d 29 (Mo.1975); Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973), cert. denied, 414 U.S. 1075, 94 S.Ct. 592, 38 L.Ed.2d 482 (1973); Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695 (1973).

In Hetrick, a First Amendment challenge to contract nonrenewal, the school administration expected teachers to teach on a basic level, stressing fundamentals and following conventional teaching patterns. Plaintiff's teaching, however, emphasized student responsibility, as well as freedom to organize class time and assignments in terms of student interest. In an unpubished memorandum opinion, the Federal District Court for the Eastern District of Kentucky reasoned that while the First Amendment guarantee of academic freedom gives a teacher the right to encourage a vigorous exchange of ideas within the confines of the subject matter being taught it does not require a University or school to tolerate any manner of teaching method the teacher may choose to employ. A University has a right to require some conformity with whatever teaching methods are acceptable to it.

480 F.2d at 707.

On appeal, the teacher claimed a constitutional right to "teach her students to think" and argued the First Amendment protected her from termination for using teaching methods and adhering to a teaching philosophy that are "well-recognized in the profession." The Sixth Circuit Court of Appeals concluded plaintiff's rights had not been abridged by the refusal to rehire her because of her teaching philosophy. The court held academic freedom

does not encompass the right of a nontenured teacher to have her teaching style insulated from review by her superiors . . . just because her methods and philosophy are considered acceptable somewhere within the teaching profession.

480 F.2d at 709.

Like the plaintiff in Hetrick, Millikan and Petersen have utilized unconventional but professionally recognized methods designed to teach the student to think. Notwithstanding this worthy objective, Hetrick indicates an educational institution may require some conformity in teaching methods. Under the reasoning in Hetrick, the respondent-defendant board's requirement that petitioners teach history classes in a...