D. Teacher Rights

Much like student speech, teacher speech within the classroom raises constitutional considerations, particularly with regard to the First Amendment. One of the hallmarks of First Amendment protection in academia is the concept of academic freedom. Academic freedom provides teachers with First Amendment protections in the performance of their teaching duties. This freedom allow teachers to influence curriculum content and pedagogical methods. However, academic freedom is generally applied as a recognized legal concept only in higher education. As a result, teachers in public primary and secondary schools have minimal constitutional protection when making decisions about curriculum.

In fact, while courts have recognized that teachers are entitled to certain First Amendment protections in the classroom, courts permit state and local school authorities to widely regulate teacher speech within certain constitutional limits. Teachers are rarely successful in bringing First Amendment claims challenging curricular decisions. While courts have yet to adopt a coherent analysis for First Amendment protections of teacher classroom speech, a few key cases provide courts with a framework for deciding teacher challenges to curricular decisions. Courts have recognized the critical role that teachers play in developing students' attitude toward government and understanding of the role of citizens in our society, and by extension acknowledge the importance of teacher speech. However, courts have consistently held that a teacher's classroom instruction is public employee speech. Therefore, among other standards, courts have routinely applied the public employee speech doctrine and academic freedom to teacher curricular speech.

Even where teachers' First Amendment concerns are implicated, courts may uphold curricular decisions that are based on legitimate pedagogical concerns. For example, the Seventh Circuit held that a teacher's claim that a school district's prohibition on teaching a particular course violated his First and Fourteenth Amendment rights was properly dismissed based on the principle that an individual teacher has no right to ignore the directives of duly appointed education authorities. The court noted that the school district clearly demonstrated an important pedagogical interest in establishing the curriculum. Courts have consistently applied this rational basis test to curricular decisions. The state of Arizona has the potential to advance a number of legitimate pedagogical purposes, including encouraging respect between students, reducing racial and ethnic tensions, and preventing segregation and isolation of ethnic and racial minorities into ethnocentric courses.

Many courts never reach First Amendment considerations to resolve curricular disputes. In Boring v. Buncombe County Board of Education, the Fourth Circuit held a public high school teacher did not have a First Amendment right to participate in determining the school curriculum through the selection and production of a theatrical play. The plaintiff in Boring, a high school teacher, assigned her students to perform a theatrical play containing controversial material. After receiving complaints from parents, the principal requested that the teacher remove the controversial portions from the play. However, at the close of the school year, the principal requested the district to transfer the teacher to another school. After the superintendent granted this request, the teacher sued the school on a variety of grounds, including violation of her First Amendment free speech rights. On appeal, the Fourth Circuit concluded that the teacher's dispute with school officials was an ordinary employment dispute and did not constitute protected speech under the First Amendment. As such, the court noted that the school board did not need to defend its decision with a legitimate pedagogical interest since the teacher's First Amendment rights were not affected. However, the court also remarked that even if the teacher had a First Amendment right under the circumstances, school officials had articulated a legitimate pedagogical interest because the play was part of the school's curriculum.

The majority in Boring also applied the public concern test from Connick v. Myers. In Connick, the Supreme Court invoked the Pickering test and held that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters of personal interest then the First Amendment is not implicated because the matter is merely an employment dispute. In a similar case, the Fifth Circuit, applying Connick, held that a teacher's selection of a reading list was not a matter of public concern, and thus, was not protected by the First Amendment. The Fifth Circuit noted that while the concept of academic freedom has been recognized in our jurisprudence, the doctrine has never conferred upon teachers the control of public school curricula. Most courts have adopted the Seventh Circuit's approach under Garcetti v. Ceballos, where curricular speech is part of a teacher's employment responsibility and thus the First Amendment does not protect a teacher's speech that departs from the school system's adopted curriculum.

In addition to First Amendment challenges, teachers may raise due process and equal protection challenges to the Arizona ethnic studies law; specifically the due process claims of vagueness and overbreadth. The Fourteenth Amendment's Due Process clause requires that statutes provide sufficient notice of a prohibited activity. Under the vagueness doctrine, a statute is void on due process grounds if a prohibition is not clearly defined. Teachers also have a right to know what classroom speech is prohibited in a state statute. Under the vagueness doctrine, regulations must provide people of ordinary intelligence a reasonable opportunity to know what is prohibited and provide explicit standards for those who apply them. However, the Supreme Court has noted that when the Government is acting as a patron rather than as a sovereign, the consequences of imprecision are not constitutionally severe. As such, a vagueness claim brought by the Arizona teachers will likely be unsuccessful.

It is also unlikely that a court would find the Arizona law overbroad. A statute is overbroad if it burdens speech protected by the First Amendment such that the burden is substantial when compared to unprotected speech. The ethnic studies law, like most curricular decisions in schools, restricts speech only in public secondary education classrooms. Given that classroom speech is not afforded the full protection of the First Amendment, and that courts generally find the unique environment of schools require great deference to school administrators, laws that restrict speech in the classroom will likely withstand facial challenges of vagueness or over-breadth.

Teachers and students in the TUSD could also raise a claim pursuant to the Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment provides that [n]o state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws. This provision imposes a restraint on the governmental use of classifications, such as race, to create or enforce a law.

Challenges may be raised to a statute's constitutionality either on its face or as-applied. Unfortunately for the teachers, a facial challenge to the Arizona law is not likely to succeed. Under Supreme Court precedents, a facial challenge to a statute will fail unless there is no set of circumstances under which the statute is valid. As such, teachers and students in the Tucson School District are more likely to succeed in an as-applied challenge to the Arizona ethnic studies law. Under this type of challenge, the teachers in the MAS program could allege that the state discriminated against them on the basis of their national origin. Discrimination may be found only by establishing unequal treatment of people in similar circumstances. Thus, to prove an equal protection violation, the teachers must show that the state acted with the intent to discriminate against them based upon their membership in that protected class.

Teachers and students probably cannot establish a race-based equal protection claim that would warrant strict scrutiny review because there is no evidence of intentional racial discrimination. As such, a court would apply rational basis analysis, which requires the classification to be rationally related to a legitimate purpose. Tom Horne argues that the aim of the law is to prohibit ethnic studies courses that divide students by race and ethnicity. Applying rational basis analysis, a court will consider whether such a purpose is reasonably related to the pedagogical interests of the state. State and local education officials have a legitimate state interest in preventing segregation within public schools. Some commentators and school officials have made the connection between particular ethnic studies courses and segregation. A related concern for some school districts is the goal of minimizing racial conflict within the school. Thus, a court will likely uphold the ethnic studies statute in light of Arizona's pedagogical interest in establishing a curriculum for its public schools and confronting the concerns of racial and ethnic conflict and segregation.

Similarly, if a challenge is brought alleging that the contents of the curriculum are discriminatory, the state of Arizona will likely prevail because courts grant broad discretion to a state to determine the content of its curriculum. Courts have unambiguously held the Equal Protection Clause will not support a challenge to [a state's] curriculum even where its contents are allegedly discriminatory.

The Arizona ethnic studies statute raises significant constitutional questions. However, courts will likely defer to state school authorities rather than become involved in a public school curriculum policy debate. Indeed, while students, parents, and teachers may raise serious constitutional questions to the law, courts will almost certainly conclude that the statute arises in the daily operation of the school system and does not implicate the basic constitutional values necessary for judicial intervention.

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As the demography of this country changes, states may contemplate enacting laws similar to Arizona's ethnic studies ban. If so, one can only hope that wisdom will prevail. As exemplified by the discussion herein, it is highly debatable whether Arizona's statute actually prepares students for life in a culturally diverse society. However, as this analysis demonstrates, the Constitution probably provides no barrier to such statutes.



. Harry Lawrence Batschelet II Chair Professor of Educational Administration and Professor of Education and Law, Pennsylvania State University.