Legal Clips, [March 2006]
A Virginia federal district court has ruled that school officials did not violate a teacher's free speech or equal protection rights under either the U.S. or the Virginia constitutions when they removed posters with religious content from his classroom. William Lee, a Spanish teacher at Tabb High School (THS), filed suit against the York County School Board (YCSB), alleging that THS officials violated his free speech and equal protection rights when they removed religious posters from his classroom while he was out on sick leave. One of the posters publicized the National Day of Prayer. School officials argued that the posters were removed out of concern for violating the Establishment Clause. YCSB filed a motion for summary judgment on all of Mr. Lee's claims. The court began its analysis of the teacher's free speech claim by first determining that his speech occurred in his capacity as a public employee, rather than as a private citizen. As a result, it applied the two-part Pickering-Connick test. This test, based on the U.S. Supreme Court rulings in Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983), requires a court first to determine if the speech was on a matter of public concern and is, therefore, protected by the First Amendment. Speech that is so protected then is subjected to the second part of the test, which requires the court to balance whether the employee's interest in speaking outweighs the employer's interest in maintaining the efficient function of its operations. However, before engaging in this analysis, the district court pointed out that the U.S. Court of Appeals for the Fourth Circuit developed a simplified form of the Pickering-Connick test in the context of public school teacher's speech. In Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir. 1996), the Fourth Circuit held that "curricular speech" does not touch on a matter of public concern and is not protected by the First Amendment.
      Summarizing the Boring holding, the court stated that "curricular speech fails per se to be a matter of public concern," and "vital to this analysis is the definition of 'curricular speech.'" Applying Boring to the materials Mr. Lee posted in his classroom, the court found the materials were curricular speech because he used them as part of his methodology of instruction and sought to instruct students on curricular matters through the postings. Even if the posters were not curricular speech, the court concluded, they were not speech on a matter of public concern based on the Pickering-Connick analysis, which examines the content, form, and context of the speech. The content and form of the posters demonstrated that they were chosen based on Mr. Lee's private interests, and they were displayed in a non-public forum, the classroom. Lastly, the district court rejected the teacher's claim that school officials had engaged in viewpoint discrimination because the posters were removed based on their religious content. Once it was determined that the speech was not on a matter of public concern, it was not protected by the First Amendment and, therefore, "the court need not 'scrutinize the reasons for' the regulation." Turning to Mr. Lee's equal protection claim, the district court found that this was merely a recasting of the First Amendment arguments: Mr. Lee failed to raise any other instances of discrimination other than the allegations of viewpoint discrimination based on his religious beliefs. As a result, the equal protection claim could not succeed where the free speech claim had failed. Finally, because the Virginia constitution extends no greater free speech or equal protection rights than does the U.S. Constitution, the state claims failed on the same bases as the federal ones.

Lee v. York County School Division, No. 05-125 (E.D. Va. Feb. 23, 2006)
[Link to full opinion]

[Editor's Note: For background information on the lawsuit, including, Mr. Lee's complaint, access the link below.]
[NSBA School Law pages on Lee v. YCSB]