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Monday, May 14, 2007

Ind. Decisions - "'Honk for peace' case tests limits on free speech"

Bob Egelko of the San Francisco Chronicle writes today about the Jan. 24th 7th Circuit decision in the Indiana case of Mayer v. Monroe County. (See ILB summary here.) Some quotes from the story:

When one of Deborah Mayer's elementary school students asked her on the eve of the Iraq war whether she would ever take part in a peace march, the veteran teacher recalls answering, "I honk for peace."

Soon afterward, Mayer lost her job and her home in Indiana. She was out of work for nearly three years. And when she complained to federal courts that her free-speech rights had been violated, the courts replied, essentially, that as a public school teacher she didn't have any.

As a federal appeals court in Chicago put it in January, a teacher's speech is "the commodity she sells to an employer in exchange for her salary." The Bloomington, Ind., school district had just as much right to fire Mayer, the court said, as it would have if she were a creationist who refused to teach evolution.

The ruling was legally significant. Eight months earlier, the U.S. Supreme Court had decided in a case involving the Los Angeles district attorney's office that government employees were not protected by the First Amendment when they faced discipline for speaking at work about controversies related to their jobs. The Chicago appeals court was the first to apply the same rationale to the classroom, an issue that the Supreme Court expressly left unresolved.

But legal analysts said the Mayer ruling was probably less important as a precedent than as a stark reminder that the law provides little protection for schoolteachers who express their beliefs. * * *

The Mayer ruling was disappointing but not surprising, said Michael Simpson, assistant general counsel of the National Education Association, the nation's largest teachers' union. For the last decade, he said, federal courts "have not been receptive to arguments that teachers, both K-12 and higher education, have free-speech rights in the classroom."

That's unacceptable, said Mayer, 57, who now teaches seventh-graders in Haines City, Fla. She said she's scraped up enough money, by selling her car, to appeal her case to the Supreme Court, though she doubts the justices will review it.

"If a teacher can be fired for saying those four little words -- 'I honk for peace' -- who's going to want to teach?" she asked. "They're taking away free speech at school. ... You might just as well get a big television and set it in front of the children and have them watch, (using) the curriculum the school board has." * * *

The Supreme Court has never ruled on teachers' free speech. In lower courts, teachers have won cases by showing they were punished for violating policies that school officials never explained to them beforehand or invented after the fact. A federal appeals court in 2001 ruled in favor of a fifth-grade teacher in Kentucky who was fired for bringing actor Woody Harrelson to her class to discuss the benefits of industrial hemp, an appearance that school officials had approved. * * *

Unless the Supreme Court takes up Mayer's case, its legal effect is limited to federal courts in Illinois, Indiana and Wisconsin, the three states in the Seventh Circuit. But Amar, the Hastings law professor, and others said the ruling could be influential elsewhere because there are few appellate decisions on the issue, and because the author, Chief Judge Frank Easterbrook, is a prominent conservative jurist.

"Very few schools are going to be that harsh in muzzling or silencing their teachers," but the ruling indicates they would be free to do so, Amar said.

Posted by Marcia Oddi on May 14, 2007 08:16 AM
Posted to Ind. (7th Cir.) Decisions