“Don’t talk about anything controversial in the classroom”

There were parent complaints about the way Ms. Cooper was teaching American History.  She had the kids engaged in the Sunshine Project, a role-playing simulation based on rural America in the 1870s.  This was the Reconstruction era after the Civil War era with much upheaval of the way things had been.  In those years in America there was a lot of racial tension and considerable violence.  The Sunshine Project stirred things up, and some of the parents in the small Texas community didn’t like it. 

Ms. Cooper was called into the principal’s office twice to discuss this. The HR director was present for the second meeting and instructed the teacher “not to discuss Blacks in American history” and that “nothing controversial should be discussed in the classroom.” 

Contract renewal time came around and both the principal and the superintendent recommended that Ms. Cooper’s contract be renewed. They were aware of the complaints and the controversy, but they rated her as “outstanding” in her formal evaluation, noting that she was “thoroughly satisfactory” in every category of performance.  The school board disregarded those recommendations and voted not to offer Ms. Cooper a contract for the next school year. 

Does this sound like something that could happen in Texas after the passage of HB 3979?  Maybe so.  But all of this came down in the spring of 1972, leading to a lawsuit that culminated in a 5th Circuit decision from 41 years ago: Cooper v. Kingsville ISD.  Lots of lawyers are going to want to refresh their memories about this case.

Deposition testimony from the board members made it clear—they nonrenewed Ms. Cooper’s contract because of the Sunshine Project.  So we have a clear cut First Amendment case. Does the teacher have any constitutional protection for things said in the classroom?

The 5th Circuit concluded that “Classroom discussion is protected activity.”  The district, through improperly motivated board action, had infringed on Ms. Cooper’s First Amendment rights.    The court held that the district could overcome this only if it presented evidence that her use of this simulation technique “overbalanced her usefulness as an instructor.”  The district could not do that. Let’s remember: the direct supervisors rated her as “outstanding.” 

The Supreme Court restricted public employee First Amendment rights with its decision in Garcetti v. Ceballos in 2006.  The Court ruled in that case that public employees do not enjoy First Amendment protection when the words they utter are spoken as part of their job duties. That would seem to completely squash any claim of academic freedom for public school teachers, but the Court anticipated that issue and put it off to another day:  “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.” 

That leaves Janet Cooper’s case as the highest authority we have on free speech as applied to classroom discussions.

Somewhere in Texas this school year some teacher is going to get in trouble for things said in the classroom that run afoul of the restrictions in HB 3979.  That teacher’s lawyer is going to dust off Cooper v. Kingsville ISD.  At Walsh Gallegos we’re ready to help you navigate these issues.     


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Tomorrow: Sometimes it’s a matter of jurisdiction.