Brittney Kaye Settle v. Dickson County School Board

BATCHELDER, Circuit Judge,

concurring.

While I agree with the majority that the district court properly granted summary judgment for the defendants-appellees in this case, I respectfully disagree with both the majority’s discussion of the facts and its analysis of the law. Consequently, I concur only in the result of the majority opinion.

There is no doubt that a balance must be struck between a student’s right to freedom of expression in the classroom and a teacher’s right to control and manage that classroom. And while it is true that courts should not meddle in the day to day operation of school functions, “ ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’” Epperson v. Arkansas, 393 U.S. 97, 104 , 89 S.Ct. 266, 270 , 21 L.Ed.2d 228 (1968) (quoting Shelton v. Tucker, 364 U.S. 479, 487 , 81 S.Ct. 247, 251 , 5 L.Ed.2d 231 (I960)). In the words of the Supreme Court, it is indisputable that “students ... [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Com *157 munity Sch. Dist., 393 U.S. 503, 506 , 89 S.Ct. 733, 736 , 21 L.Ed.2d 731 (1969).

However, we ought not go about striking this balance unless the facts of the case require it. In my view, this is not such a ease. The. crux of Brittney’s claim in this case is that she was assigned to choose an “interesting, researchable and decent” topic for a research paper in her ninth-grade English class, she chose as her topic “The Life of Jesus Christ,” she was not permitted to write the paper on this topic because it was religious, and this deprived her of her right to engage in free expression. Although I do not think that the facts in regard to this' claim are as clear as the majority opinion portrays them as being, the material facts are clear, those facts are not in dispute, and those facts do not state a First Amendment claim. This case is not about Brittney Settle’s First Amendment right to express her views, opinions or beliefs, religious or otherwise, in the classroom. This case is about whether Brittney’s ninth-grade English teacher may determine what topic is appropriate to satisfy a research paper assignment in that class.

The material facts are that Ms. Ramsey assigned a research paper to her ninth-grade class, that she permitted the students to choose their own topics, and that she restricted that choice only by these criteria— that the topic be “interesting, researchable and decent.” The paper was to be a research paper, not an opinion paper, and it was to be written solely to be turned in to the teacher for a grade, not for publication in a school newspaper or any other forum. Brittney timely chose a topic, changed that topic without the teacher’s permission to “The Life of Jesus Christ,” and was denied permission to write her paper on the changed topic. Ms. Ramsey gave a number of reasons for refusing to permit Brittney to write her paper on the life of Christ, Brittney refused to choose a new topic, Ms. Ramsey gave her a “zero,” and her decision was upheld by school officials. This lawsuit ensued.

In my view, these facts simply do not state a constitutional claim. Ms. Ramsey was not engaged in restricting Brittney’s expression. She was engaged in restricting Brittney’s choice of topic for a research paper. Brittney does not expressly claim that a classroom teacher cannot control the subject matter for such assignments without violating the students’ rights of expression. Rather, she claims that the restrictions on this assignment were so loose that her choice of topic fit the assignment, and that Ms. Ramsey refused to permit her to use that topic because the topic was religious. Brittney bolsters her claim by asserting that Ms. Ramsey’s reasons for refusing to permit the topic were obviously pretextual.

T would agree that some of Ms. Ramsey’s after-the-fact reasons are not very convincing. And I do not agree with the majority’s finding that there is no basis in the record for a claim that Ms. Ramsey was not truthful in stating those reasons. More importantly, however, I do not think that Ms. Ramsey’s after-the-fact statement of reasons, even if those reasons were pretextual, were pretexts for suppressing Brittney’s expression. They were pretexts for an error in judgment. The one thing which this record demonstrates clearly is that what Ms. Ramsey was guilty of was failing to provide this ninth-grade class with substantive guidelines for choosing their research paper topies. Faced with Brittney’s new and unapproved topic, Ms. Ramsey realized that the criteria that she had in mind, but had not adequately explained to the class, limited the acceptable topics well beyond the general criteria of “interesting, re-searchable and decent.”

Implicit in the majority’s opinion is the view that classroom teachers can make mistakes of judgment in determining how to teach, and these mistakes, so long as they are not based on impermissible criteria, do not give rise to claims of constitutional deprivations. I wholly agree. And on the facts of this case, that is all that needs to be said.

The majority, however, has engaged in a First Amendment analysis of this case. As I have stated, I do not believe that the facts here implicate Brittney’s First Amendment rights, but I take very seriously Brittney’s right to express her views at school — including her religious beliefs — and for that reason, I must respectfully disagree with the majori *158 ty’s analysis. “Religionists no less than members of any other group enjoy the full measure of protection afforded speech, association, and political activity generally.” McDaniel v. Paty, 435 U.S. 618, 641 , 98 S.Ct. 1322, 1336 , 55 L.Ed.2d 593 (1978) (Brennan, J., concurring). Brittney’s status as a high school student does not alter the fundamental core of her right to freedom of expression under the First Amendment. In the context of the classroom, however, there are necessary limits on student expression. The rights of students to express their views in the public classroom “are not automatically coextensive with the rights of adults in other settings.” Bethel Sch. Dist. No. U02 v. Fraser, 478 U.S. 675, 682 , 106 S.Ct. 3159, 3164 , 92 L.Ed.2d 549 (1986).

It is the “oft-expressed view” of the Supreme Court that “the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 , 108 S.Ct. 562, 571 , 98 L.Ed.2d 592 (1988) (citations omitted). That, it seems to me, is precisely why complaints such as the one Brittney Settle brings before us today, do not state constitutional claims, and cannot be made to fit within the framework of cases such as Hazelwood and Tinker , upon which the majority attempts to rely.

The facts in this case are not analogous to the facts in Hazelwood. Brittney’s paper was to be written solely for the purpose of fulfilling an assignment in English class. It was not for publication in a school-sanctioned newspaper, 1 or in any other forum. There is no way to make a colorable claim that this paper is speech which might be viewed by the community as bearing the imprimatur of the school, the circumstance which was central to the Supreme Court’s holding in Hazelwood. Id. at 270-71, 108 S.Ct. at 569-70 .

Neither is this case like the situation in Tinker . A research paper is not an expression of opinion, and the restriction of choice of topic is not readily analogous to the kind of pure expression of student opinion, that happened to take place in the classroom, that the Supreme Court addressed there. •Tink er, 393 U.S. at 511, 89 S.Ct. at 739.

If there were a First Amendment issue here, it would fall somewhere in between Hazelwood and Tinker as a form of student expression allowed under the school curriculum but not sponsored or endorsed by the school. Certainly not all student speech in the classroom bears the imprimatur of the school. This seems as obvious as the opposite proposition; students do not have an unlimited or unbridled right to speak out freely while on school property. The Supreme Court has acknowledged that a difference exists “between speech a school must tolerate and speech a school must affirmatively promote.” Alabama Student Party v. Student Government Association, 867 F.2d 1344, 1347 (11th Cir.1989) (emphasis added) (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 , 108 S.Ct. 562 , 98 L.Ed.2d 592 (1988)).

The bottom line is that when a teacher makes an assignment, even if she does it poorly, the student has no constitutional right to do something other than that assignment and receive credit for it. It is not necessary to try to cram this situation into the framework of constitutional precedent, because there is no constitutional question.

That does not, however, make the majority’s treatment of Ms. Ramsey’s stated reasons for rejecting Brittney’s paper topic irrelevant. The majority opinion sets out six reasons given by Ms. Ramsey for refusing to permit Brittney to write her research paper on the “The Life of Jesus Christ,” and holds that “[a]ll six of Ms. Ramsey’s stated reasons for refusing to allow Brittney to write the paper fall within the broad leeway of teachers to determine the nature of the curriculum and the grades to be awarded to students, even the reasons that may be mistaken.” *159 Majority opinion at 156.1 cannot agree. Ms. Ramsey said, for example, that “‘we’ don’t deal with personal religion’” and ‘“the law says we are not to deal with religious issues in the classroom.’ ” Majority opinion at 154. On the contrary, religious speech, like all speech, does have a place in the classroom. According to the Supreme Court:

Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of noreligion [sic]; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.

Epperson v. Arkansas, 393 U.S. 97, 103-04 , 89 S.Ct. 266, 269-70 , 21 L.Ed.2d 228 (1968) (footnote omitted). Ms. Ramsey was dead wrong in her view that Brittney’s paper topic was impermissible because a paper of a religious nature is impermissible in the public schools. Had the assignment been to write a paper of opinion, and had Ms. Ramsey rejected the paper on the ground of its religious content alone, Brittney’s freedom of speech truly would have been violated. I do not believe, therefore, that the majority correctly states the law in this regard by holding “[ljearning is more vital in the classroom than free speech.” Majority opinion at 156. “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509 , 89 S.Ct. at 738 .

Brittney also attempts to raise an equal protection claim contending that because Ms. Ramsey permitted other students to choose research topics based on religious themes, Brittney was denied constitutional equal protection under the laws. Several other students in Brittney’s class were permitted to research and write on the topics “Spiritualism,” “Reincarnation,” and “Magic Throughout History.” Once again, however, it was within the teacher’s discretion to determine whether these topics conformed to the restrictions inherent in the research assignment. So long as the student authors would be required to compile research and organize facts in an objective fashion, their topics, religious or not, could be judged appropriate for the assignment. Ms. Ramsey properly exercised her power of control over the classroom in distinguishing Brittney’s topic from those,others in her ninth-grade class. On these facts, Brittney has not presented an equal-protection claim.

. I am puzzled by the majority’s characterization of the school newspaper in Hazelwood as “a kind of open forum for students....” Majority opinion at 155. The Supreme Court in that case explicitly found that the district court had correctly dismissed as not credible the students’ claim that they believed they could publish "practically anything” in the paper, and held that the newspaper was not a forum for public expression. Hazelwood, 484 U.S. at 269 & n. 2, 108 S.Ct. at 569 & n. 2.