The Volokh Conspiracy - Speech/Ideology as Evidence of Likely Job Performance:

Apropos Orin's post, consider whether you agree or disagree with the following excerpt from Judge Easterbrook in Wales v. Bd. of Ed., 120 F.3d 82, 85 (7th Cir. 1997):

(Show excerpt.)

The Dorothy deLacey Early Childhood Education Center is among a handful of schools in the United States that permit even the youngest pupils to pick their own fields of study. The school district that operates the deLacey Center tells us that if a pupil shows an interest in rabbits, the teacher must design a curriculum for that pupil around rabbits -- while other kids in the same classroom try to learn reading and arithmetic through materials on fire engines and dinosaurs. Since its founding the Center has catered to children with special educational needs. In the fall of 1992 the deLacey Center became an "inclusion facility." Pupils with learning disabilities or behavior problems were mixed with those whose challenges were less severe....

[Kindergarten teacher Colleen] Wales was not happy with the turn of events at the deLacey Center.... By November 1992, ... it seemed to Wales that her time was devoted more to self-defense from hyperactive kids than to instruction. Wales called for assistance in managing her class more often than did other teachers. She succeeded in having one child removed from class and sent elsewhere. Schumacher turned down Wales's request for the removal of a second child. Wales promptly took a medical leave and sent Schumacher a lengthy memorandum protesting her management of the deLacey Center. Its final two paragraphs convey the tenor:

Under my contractual obligations with the district, I was employed to serve as a teacher, not as a guard in a detention room. In addition, I have professional and legal obligations to ensure the safety of my students and to provide them with a positive learning environment. This cannot be accomplished under the present lack of procedure and/or lack of complying with established procedure in terms of discipline for students who cannot or will not comply with accepted norms of behavior in a regular classroom setting. In addition, I do not have to expect that being a punching bag for a student is an assigned job task of a teacher.

As such, I would like some form of written documentation and/or clarification, consistent with state statute, as to what actions/procedures will be enacted in order to perform/maintain discipline within the classroom as well as what actions will be taken to ensure that other students, as well as myself, will not be subjected to continued physical abuse without repercussions. As an employee of the district, I feel that it is only right that procedures be clarified and followed through, especially now that the situation has deteriorated to one where my personal health has been affected.

[Soon afterwards, Wales's contract was not renewed; Wales argues it was partly because of her speech. -EV] ...

A school is entitled to insist that its staff carry out the educational philosophy espoused by the elected school board and the principal the board appoints. A Montessori school need not employ teachers who hanker for stern discipline. A memorandum proclaiming support for a disfavored educational approach (removing or disciplining disruptive kids) may be useful to a school in determining how a teacher runs her classroom.

When a communication is simultaneously protected speech (as a call to the public to change the way the schools run) and a sound reason for an employer to act (when it reveals information relevant to performance on the job), it is essential to determine how the speech has been taken into account. Did the school district penalize an expression of views about how the schools ought to run (forbidden) or consider an expression that revealed how the teacher manages or wants to manage her own class (permitted)? ...

Rational employers routinely consider speech: think about a local treasurer's reaction to a subordinate's statement (in private, to avoid disruption) along the lines of "Everyone in this office is underpaid and entitled to steal what he can." ... A school district is entitled to put in its classrooms teachers who share its educational philosophy. This does not mean that Wales is a bad teacher; it reflects only the school district's judgment that she was not well suited to an "inclusion facility" .... Matching a person's skills to the job at hand is a difficult yet vital task for any employer, and the first amendment did not require defendants to retain at the deLacey Center someone they believed was not best for the children.

(Hide excerpt.)

	[Eugene Volokh, June 16, 2007 at 10:31am] Trackbacks Speech/Ideology as Evidence of Likely Job Performance: Apropos Orin's post, consider whether you agree or disagree with the following excerpt from Judge Easterbrook in Wales v. Bd. of Ed., 120 F.3d 82, 85 (7th Cir. 1997): (Show excerpt.) The Dorothy deLacey Early Childhood Education Center is among a handful of schools in the United States that permit even the youngest pupils to pick their own fields of study. The school district that operates the deLacey Center tells us that if a pupil shows an interest in rabbits, the teacher must design a curriculum for that pupil around rabbits -- while other kids in the same classroom try to learn reading and arithmetic through materials on fire engines and dinosaurs. Since its founding the Center has catered to children with special educational needs. In the fall of 1992 the deLacey Center became an "inclusion facility." Pupils with learning disabilities or behavior problems were mixed with those whose challenges were less severe.... [Kindergarten teacher Colleen] Wales was not happy with the turn of events at the deLacey Center.... By November 1992, ... it seemed to Wales that her time was devoted more to self-defense from hyperactive kids than to instruction. Wales called for assistance in managing her class more often than did other teachers. She succeeded in having one child removed from class and sent elsewhere. Schumacher turned down Wales's request for the removal of a second child. Wales promptly took a medical leave and sent Schumacher a lengthy memorandum protesting her management of the deLacey Center. Its final two paragraphs convey the tenor: Under my contractual obligations with the district, I was employed to serve as a teacher, not as a guard in a detention room. In addition, I have professional and legal obligations to ensure the safety of my students and to provide them with a positive learning environment. This cannot be accomplished under the present lack of procedure and/or lack of complying with established procedure in terms of discipline for students who cannot or will not comply with accepted norms of behavior in a regular classroom setting. In addition, I do not have to expect that being a punching bag for a student is an assigned job task of a teacher. As such, I would like some form of written documentation and/or clarification, consistent with state statute, as to what actions/procedures will be enacted in order to perform/maintain discipline within the classroom as well as what actions will be taken to ensure that other students, as well as myself, will not be subjected to continued physical abuse without repercussions. As an employee of the district, I feel that it is only right that procedures be clarified and followed through, especially now that the situation has deteriorated to one where my personal health has been affected. [Soon afterwards, Wales's contract was not renewed; Wales argues it was partly because of her speech. -EV] ... A school is entitled to insist that its staff carry out the educational philosophy espoused by the elected school board and the principal the board appoints. A Montessori school need not employ teachers who hanker for stern discipline. A memorandum proclaiming support for a disfavored educational approach (removing or disciplining disruptive kids) may be useful to a school in determining how a teacher runs her classroom. When a communication is simultaneously protected speech (as a call to the public to change the way the schools run) and a sound reason for an employer to act (when it reveals information relevant to performance on the job), it is essential to determine how the speech has been taken into account. Did the school district penalize an expression of views about how the schools ought to run (forbidden) or consider an expression that revealed how the teacher manages or wants to manage her own class (permitted)? ... Rational employers routinely consider speech: think about a local treasurer's reaction to a subordinate's statement (in private, to avoid disruption) along the lines of "Everyone in this office is underpaid and entitled to steal what he can." ... A school district is entitled to put in its classrooms teachers who share its educational philosophy. This does not mean that Wales is a bad teacher; it reflects only the school district's judgment that she was not well suited to an "inclusion facility" .... Matching a person's skills to the job at hand is a difficult yet vital task for any employer, and the first amendment did not require defendants to retain at the deLacey Center someone they believed was not best for the children. (Hide excerpt.) Related Posts (on one page): Speech/Ideology as Evidence of Likely Job Performance: Should Ideology Play any Role in Hiring for DOJ Career Positions?: