Deborah A. Mayer v. Monroe County Community School Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1993
D EBORAH A. M AYER ,
Plaintiff-Appellant,
v.
M ONROE C OUNTY C OMMUNITY
S CHOOL C ORPORATION , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:04-CV-1695-SEB-VSS—Sarah Evans Barker, Judge.
____________
A RGUED D ECEMBER 1, 2006—D ECIDED J ANUARY 24, 2007
____________
Before E ASTERBROOK , Chief Judge, and R IPPLE and
M ANION , Circuit Judges.
E ASTERBROOK , Chief Judge. Deborah Mayer worked
for one year as a probationary elementary-school teacher
in Monroe County, Indiana. When the school district did
not renew her contract for a second year, Mayer filed this
suit under 42 U.S.C. §1983, maintaining that the school
system let her go because she took a political stance dur-
ing a current-events session in her class, thus violating
the first amendment. The district court granted summary
judgment to the defendants, so we must accept Mayer’s
version of events—which is that she answered a pupil’s
question about whether she participated in political

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2 No. 06-1993
demonstrations by saying that, when she passed a demon-
stration against this nation’s military operations in Iraq
and saw a placard saying “Honk for Peace”, she honked
her car’s horn to show support for the demonstrators.
Some parents complained, and the school’s principal told
all teachers not to take sides in any political controversy.
Mayer believes that this incident led the school system to
dismiss her; we must assume that this is so.
The district court concluded that, because military
intervention in Iraq is an issue of public importance,
Mayer had a right to express her views on the subject, but
that the right is qualified in the workplace by the re-
quirement that expression not disrupt an employer’s
business unduly. This is the method of Pickering v. Board
of Education, 391 U.S. 563 (1968). After concluding that
the employer’s interests predominate, the district court
gave judgment for the defendants. Mayer contends on
appeal that the balance under Pickering weighs in her
favor. For their part, defendants contend that interest
balancing plays no role when the speech in question is part
of the employee’s official duties. See Garcetti v. Ceballos,
126 S. Ct. 1951, 1960 (2006) (“[W]hen public employees
make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amend-
ment purposes, and the Constitution does not insulate
their communications from employer discipline.”); Mills v.
Evansville, 452 F.3d 646 (7th Cir. 2006). Mayer concedes
that the current-events session, conducted during class
hours, was part of her official duties; if Garcetti supplies
the rule of decision, then the school district prevails
without further ado. Mayer insists, however, that princi-
ples of academic freedom supersede Garcetti in classrooms,
and she relies on a statement in Piggee v. Carl Sandburg
College, 464 F.3d 667, 672 (7th Cir. 2006), that Garcetti
was “not directly relevant” to the college instructor’s
speech in that case.

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No. 06-1993 3
Whether teachers in primary and secondary schools
have a constitutional right to determine what they say
in class is not a novel question in this circuit. We held in
Webster v. New Lenox School District No. 122, 917 F.2d
1004 (7th Cir. 1990), that public-school teachers must hew
to the approach prescribed by principals (and others higher
up in the chain of authority). Ray Webster wanted to teach
his social-studies class that the world is much younger
than the four-billion-year age given in the textbook the
class was using; he proposed that the pupils consider the
possibility of divine creation as an alternative to the
scientific understanding. We held that Webster did not
have a constitutional right to introduce his own views on
the subject but must stick to the prescribed curricu-
lum—not only the prescribed subject matter, but also the
prescribed perspective on that subject matter. Following
Palmer v. Board of Education, 603 F.2d 1271 (7th Cir.
1979), we held in Webster that “those authorities charged
by state law with curriculum development [may] require
the obedience of subordinate employees, including the
classroom teacher.” 917 F.2d at 1007. See also Boring v.
Buncombe County Board of Education, 136 F.3d 364 (4th
Cir. 1998).
This is so in part because the school system does not
“regulate” teachers’ speech as much as it hires that speech.
Expression is a teacher’s stock in trade, the commodity
she sells to her employer in exchange for a salary. A
teacher hired to lead a social-studies class can’t use it as
a platform for a revisionist perspective that Benedict
Arnold wasn’t really a traitor, when the approved program
calls him one; a high-school teacher hired to explicate
Moby-Dick in a literature class can’t use Cry, The Beloved
Country instead, even if Paton’s book better suits the
instructor’s style and point of view; a math teacher can’t
decide that calculus is more important than trigonometry

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4 No. 06-1993
and decide to let Hipparchus and Ptolemy slide in favor of
Newton and Leibniz.
Beyond the fact that teachers hire out their own speech
and must provide the service for which employers are
willing to pay—which makes this an easier case for the
employer than Garcetti, where speech was not what the
employee was being paid to create—is the fact that the
pupils are a captive audience. Education is compulsory,
and children must attend public schools unless their
parents are willing to incur the cost of private education or
the considerable time commitment of home schooling.
Children who attend school because they must ought not
be subject to teachers’ idiosyncratic perspectives. Majority
rule about what subjects and viewpoints will be expressed
in the classroom has the potential to turn into indoctrina-
tion; elected school boards are tempted to support majority
positions about religious or patriotic subjects especially.
But if indoctrination is likely, the power should be reposed
in someone the people can vote out of office, rather than
tenured teachers. At least the board’s views can be debated
openly, and the people may choose to elect persons commit-
ted to neutrality on contentious issues. That is the path
Monroe County has chosen; Mayer was told that she
could teach the controversy about policy toward Iraq,
drawing out arguments from all perspectives, as long as
she kept her opinions to herself. The Constitution does not
entitle teachers to present personal views to captive
audiences against the instructions of elected officials. To
the extent that James v. Board of Education, 461 F.2d 566
(2d Cir. 1972), and Cockerel v. Shelby County School
District, 270 F.3d 1036, 1052 (6th Cir. 2001), are to the
contrary, they are inconsistent with later authority and
unpersuasive.
Piggee supports the school district rather than Mayer.
An instructor at a community college, Piggee had argued
that the first amendment allowed her to promote a reli-

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No. 06-1993 5
gious perspective on homosexuality to students in a
cosmetology class. We held, to the contrary, that a college
may demand that instructors limit their speech to topics
germane to the educational mission. A germaneness
rule does not entail balancing under Pickering; Piggee
could not conduct “just a little” proselytizing on the theory
that it did not do “very much” harm to the educational
mission. Our remark that Garcetti was “not directly
relevant” did not reflect doubt about the rule that employ-
ers are entitled to control speech from an instructor to a
student on college grounds during working hours; it
reflected, rather, the fact that Piggee had not been hired
to buttonhole cosmetology students in the corridors and
hand out tracts proclaiming that homosexuality is a
mortal sin. The speech to which the student (and the
college) objected was not part of Piggee’s teaching duties.
By contrast, Mayer’s current-events lesson was part of her
assigned tasks in the classroom; Garcetti applies directly.
How much room is left for constitutional protection of
scholarly viewpoints in post-secondary education was left
open in Garcetti and Piggee and need not be resolved
today. Nor need we consider what rules apply to publica-
tions (scholarly or otherwise) by primary and secondary
school teachers or the statements they make outside of
class. See Vukadinovich v. North Newton School Corp., 278
F.3d 693 (7th Cir. 2002). It is enough to hold that the first
amendment does not entitle primary and secondary
teachers, when conducting the education of captive audi-
ences, to cover topics, or advocate viewpoints, that depart
from the curriculum adopted by the school system.
A FFIRMED

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6 No. 06-1993
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-24-07

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