Education Law Section

By William Joseph Austin Jr.

This article is posted in anticipation of the 2017 Education Law Section Annual Meeting and CLE scheduled for April 21 at the N.C. Bar Center.  The theme of the program is freedom of speech in educational institutions.

A 50th anniversary came and went this past fall without fanfare or commemoration.  But for several weeks in October and November of 1966, Andrew Marvell’s poem, “To His Coy Mistress,” written circa 1650’s, was a “national sensation.”[1]  On Oct. 17, 1966, the television station WRAL reported that a UNC English instructor had assigned his students to write a paper on seduction using this 17th-century poem.[2]  Subsequent investigation by a departmental committee determined in November that the instructor, Michael Paull, had not given the students that assignment, but asked them to use the poem to explain imagery and six figures of poetic speech.[3]

In the meantime what was called the “Coy Mistress” case became the subject of television commentaries by then editorialist Jesse Helms in his Viewpoint series.  Quoting from the transcript of one of them, he had this to say:

In the sometimes fuzzy, superficial world of misguided academic freedom and irresponsible freedom of the press, all the world is mostly a stage and a good many of the people are actors.  Therefore, it is remotely possible, though not logically probable, that the young English professor at Chapel Hill — the one with such an apparent preoccupation with sex — may somehow manage to wear that crown of pious martyrdom so frantically placed upon his head last week by the “liberal” newspapers of the state.[4]

The history of how a freshman English assignment was seized upon by the press and politicized is discussed in depth elsewhere.[5]  Yet the “Coy Mistress” case is often forgotten, perhaps eclipsed.  This chapter in UNC history occurred in the wake of the 1966 “student revolt” against the Speaker Ban Law.[6]  Overturning the Speaker Ban Law was ultimately a victory for academic freedom in the classic sense that educational institutions should be allowed to freely determine on educational grounds who may teach, what may be taught, and how it shall be taught.[7]  The “Coy Mistress” case, on the other hand, at least according to one scholar, involved the “politics of character assassination,”[8] referring to the invective heaped on the English instructor and the effect it had on his teaching career.  It also involved a direct attack on the Sweezy freedom[9] to let the university determine what may be taught and how.  After all, “To His Coy Mistress” was then, and still is, recognized as a “Masterpiece,” reviewed in the eponymous Wall Street Journal weekly feature.[10]

However our purpose here is not to cast judgment, but to demonstrate, once again, what’s past is prologue.  Fifty years later, the fall semester of 2016 was marked by increased incidence of newsworthy speech and speech acts in school settings, albeit none as intense (so far) as the “Coy Mistress” case:

  • In September a high school teacher resigned after her students said she asked them to compare speeches by Adolf Hitler with those made by then presidential candidate Donald Trump.
  • In October, several members of a university marching band, emulating the racial protest of a professional football player, “took a knee” during the Star Spangled Banner at a college football game.
  • In November an elementary school canceled a “wax museum” in which third-graders had chosen to portray Adolf Hitler.
  • It was reported that a university course on college sports, “Big-time College Sports and the Rights of Athletes, 1956 to the Present,” was the object of efforts to “do away with the course.”[11]
  • A high school teacher was suspended for 10 days for stepping on the American flag during a First Amendment lesson.

Collectively, these cases are suggestive of the panoply of First Amendment free speech issues that can arise in the school setting.  For example, the controversy over the college sports course evokes Sweezy again.  Then the actions of the members of the school marching band call to mind the First Amendment issues raised in the case of Tinker v. Des Moines Independent Community School District.[12]  There, students who protested the Vietnam War by wearing black armbands to school were punished.  The issue then was whether the disciplinary action violated the students’ right to the exercise of free speech that did not disrupt the school’s educational mission.[13]  The Supreme Court held that suppressing the students’ non‑disruptive display of the black armbands violated their First Amendment rights.

The incidents involving teachers could implicate the Supreme Court’s analytical way of handling public employee free speech cases, sometimes called the Pickering/Connick Test, or the Pickering Balancing Test, which takes its name from one or both cases, Connick v. Myers[14] and Pickering v. Board of Ed.,[15] in which the U.S. Supreme Court constructed this model.  The Supreme Court defined the task as seeking a balance between the interest of public employees, including teachers, in commenting on matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.[16]  The test recognizes that the public employee retains rights “as a citizen” of the United States; and also that the governmental employer does have a legitimate albeit constrained interest in regulating the speech of its employees.[17]

Also relevant is the Supreme Court’s decision in the case of Garcetti v. Ceballos,[18] another landmark decision concerning the First Amendment rights of public employees.  In that case, a deputy district attorney complained of retaliation after he criticized a search warrant obtained by a deputy sheriff in a criminal case.  The Supreme Court held that public employees who make statements pursuant to their official duties are not speaking as citizens for First Amendment purposes and are not insulated from employer discipline for their communications in the course of public employment.[19]  In dissent, Justice Souter questioned whether the majority opinion meant to imperil First Amendment protection of academic freedom in public college and universities.[20]  The majority, through the opinion written by Justice Kennedy, rejoined, “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”[21]  Thus, Garcetti does not foreclose protection for “speech related to scholarship or teaching” in addition to the Pickering/Connick protection for the teacher’s right to speak out, as a citizen, on matters of public concern.  There are implications for the education process, start to finish, from pre‑K to post‑doctoral.

The Garcetti case could be applicable in the cases involving the high school teachers inasmuch as their actions occurred in the classroom and involved instructional activities.  However, received wisdom is that K-12 teachers do not possess rights of academic freedom when it comes to teaching in a classroom.[22]  Citing North Carolina general statutes,[23] respected commentators have agreed that it is the local school board in North Carolina that has the sole authority and discretion for controlling curricular speech in the public school classroom.[24]  One commentator has stated:

Although teachers, not board members, deliver the curriculum, teachers do not have a right to select content or instructional materials or methods unless they have been specifically assigned that authority by the state or local board of education.  Court decisions have established that a teacher in North Carolina has no right under the First Amendment to challenge or fail to follow a school board’s decision related to the curriculum, whether or not the teacher is convinced that he or she knows how best to help students learn and achieve.[25]

The Fourth Circuit has also held that the same principles apply to extracurricular activities in high school, such as putting on a controversial play in a statewide competition.[26]  On the other hand, what if a school board required the high school history teacher to teach “alternative facts” such as Holocaust denial or the racial views of John C. Calhoun?  The remedy due the teacher who is ordered to convey factual misinformation to students appears to be somewhat of an open question,[27] although the equities would seem to favor a paradigm shift in such a case in favor of the teacher.

A U.S. District Judge in the Eastern District of North Carolina has quoted, albeit in a footnote, the dictum in Garcetti v Ceballos,[28] “expression related to academic scholarship or classroom instruction” may not get treated the same as statements made by public employees in their official duty.[29]  However, it did not come into play in that case, which was one of a middle school special-education teacher.  The court held that the teacher had failed to create a genuine issue of material fact under Pickering-Connick as to whether her interest in speaking out about the consolidation of life skills classes outweighed the school board’s interest in providing effective and efficient public service.[30]  Also, what she had to say in the course of being interviewed by her principal about the alleged sexual assault of a student was held to have been made pursuant to her job duties as a teacher, therefore, as an employee, not as a private citizen.[31]  Her speech was not about classroom instruction, therefore, squarely placed in the unprotected category established in Garcetti.  The judge stated, “when a teacher is performing administrative duties, as opposed to instructional duties, the Garcetti rule fully applies.”[32]  Nevertheless, the judge’s footnote may yet signal a foot in the door in a future teacher academic freedom case that does involve academic scholarship.

In 1966, the same year that gave us the “Coy Mistress” case, Robert F. Kennedy gave a speech in which he quoted what was said to be a Chinese curse, “‘May he (sic) live in interesting times.'”[33]  Sen. Kennedy went on to say, “Like it or not, we live in interesting times.  These are times of danger and uncertainty; but they are also the most creative of any time in the history of mankind.”  Like the decade of the ’60s, the present time is interesting in much the same way.  We are apt to see not only acts of protest but also creativity in our schools, colleges and universities, which will require invocation and perhaps expansion of the legal principles discussed in this article.

William Joseph Austin Jr. is a partner in the Raleigh office of Ward and Smith, P.A.  He is a member of the firm’s Education Law Section and is also a member of the North Carolina Association of Community College Attorneys.

[1] William Link, Righteous Warrior: Jesse Helms and the Rise of Modern Conservatism 90 (St. Martin’s Press, 2008) (hereafter Righteous Warrior).

[2] Id. at 89.

[3] Id.  93-94.

[4] Radio show transcript, Viewpoint #1466, October 25, 1966, Capitol Broadcasting Co., Raleigh, N.C., from the North Carolina Collection, Wilson Library, UNC‑Chapel Hill.

[5] See, e.g., Righteous Warrior, supra, at 89‑98; Bryan Thrift, Conservative Bias 131-136 (University Press of Florida, 2014); Online Exhibit, UNC Libraries, “A Right to Speak and to Hear:  Academic Freedom and Freedom of Expression at UNC,” https://exhibits.lib.unc.edu/exhibits/show/academic_freedom/classroom-filth/unc-filth (last accessed February 1, 2017).

[6] See Righteous Warrior, supra, at 89.

[7] See Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957) (“essential freedoms” of the university).

[8] See Righteous Warrior, supra, at 89.

[9] See Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957) (“essential freedoms” of the university).

[10] See Lehman, “‘Carpe Diem’ in 46 Immortal Lines,” The Wall Street Journal Saturday/Sunday, July 12-13, 2014, C13.

[11] See Jane Stancill, Sports Course Raises Eyebrows, The News & Observer, November 12, 2016, at page 1A.

[12] See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

[13] Id. at 393 U.S. at 506

[14] Connick v. Myers, 461 U.S. 138 (1983).

[15] Pickering v. Board of Ed., 391 U.S. 563 (1968),

[16] See Connick v. Myers, 461 U.S. at 142; Pickering, 391 U.S. at 568.

[17] See Connick v. Myers, 461 U.S. at 140; Pickering, 391 U.S. at 568

[18] See Garcetti v. Ceballos, 547 U.S. 410 (2006).

[19] Id. at 547 U.S. at 418.

[20] Id. at 547 U.S. at 438.

[21] Id. at 425.

[22] See Joan DelFattore, Knowledge in the Making:  Academic Freedom in America’s Schools and Universities 3 (Yale University Press, 2010) (hereafter Knowledge in the Making).

[23] See N.C. Gen. Stat. § 115C-98(b1).

[24] See Mesibov & Dunham, “School Board Control of Curricular Speech,” School Law Bulletin, UNC School of Government (July, 2009).

[25] Id. (footnote omitted).

[26] See Boring v. Buncombe County Bd. of Educ., 136 F.3d 364 (4th Cir. 1998) (en banc review).

[27] See Knowledge in the Making, supra, at 117.

[28] See Garcetti v Ceballos,  547 U.S. 410, 425 (2006).

[29] See J.W. v. Johnston County Bd. of Educ., 2014 WL 4771613*8 fn. 4 (EDNC September 24, 2014).

[30] Id at *11.

[31] Id. *8.

[32] Id. (citing Adams v. Trustees of UNC‑Wilmington, 640 F. 3d 550, 563-4 (4th Cir. 2011)).

[33] See “May You Live in Interesting Times,” Quote Investigator, posted December 18, 2015, http://quoteinvestigator.com/2015/12/18/live/ (accessed February 14, 2017).