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Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist. - 624 F.3d 332 (6th Cir. 2010)


If an employee establishes that her speech touches "matters of public concern," a balancing test determines whether the employee or the employer wins. The court balances the interests of the employee, as a citizen, in commenting upon matters of public concern against the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. 



The Tipp City Board of Education hired Evans-Marshall to teach English and to supervise Tippecanoe High School's literary magazine, BirchBark. Her contract was not renewed following a dispute over the books used for assignments in her high school English classes. Evans-Marshall sued defendants, Board of Education of the Tipp City Exempted Village School District, a principal, and the district superintendent, in the United States District Court for the Southern District of Ohio, under 42 U.S.C.S. § 1983 for alleged violations of the teacher's First Amendment rights. Evans-Marshall claimed that the school board refused to renew her contract because of her curricular and pedagogical choices.


Did teacher Evans-Marshall’s First Amendment right to free speech extend to in-class curricular speech made "pursuant to" official duties of teachers in primary and secondary schools? 




Affirming, the United States Court of Appeals held that the right of free speech did not extend to the in-class curricular speech of teachers in primary and secondary schools made pursuant to their official duties. The Court explained that a First Amendment claimant must satisfy each of these requirements: the "matter of public concern" requirement, the "balancing" requirement, and the "pursuant to" requirement. Evans-Marshall cleared the first two of these hurdles but not the third. The content of the Evans-Marshall’s curricular speech related to a matter of public concern, and a factual dispute existed over whether her interest in making curricular choices overshadowed any interest in disciplining her for doing so. Evans-Marshall also made a sufficient showing that her teaching choices caused her termination. However, because Evans-Marshall was speaking pursuant to her official duties, she was not speaking as a "citizen" for First Amendment purposes. Under Ohio Rev. Code Ann. § 3313.60(A), the school board was given responsibility over the curriculum. The concept of academic freedom, even if applicable outside the university setting did not insulate Evans-Marshall’s curricular and pedagogical choices from school board oversight.

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