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Not Every Assignment Has Pedagogical Value

As a general rule, it seems wise for courts to keep their noses out of the fraught issue of whether a school assignment has pedagogical value. After all, judges aren’t teachers, so why would it be left to courts? And yet, as schools, and teachers, become more aggressive in the nature of what they’re requiring students to do, the potential for crossing the line leaves parents of public school students with few options other than the law when the assignment goes too far.

In Evans v. Hawes, District of Nevada Judge Jennifer Dorsey denied a motion to dismiss when the high school daughter of Terrance and Candra Evans’ assignment in an acting class was to read a monologue written by another student.

R.E., the minor daughter of plaintiffs Terrance and Candra Evans, did not like the first monologue she picked, so she chose another. Her second pick was written from the perspective of “a girl coming out as a lesbian to her boyfriend.” It contained sexually explicit language concerning the girl’s interest in her female roommate and her disinterest in having sex with men. “Because R.E. had already used her one and only turn to exchange the first monologue she selected, R.E. believed she had no option but to study, memorize, and perform” the explicit monologue. The plaintiffs allege that R.E. knew Hawes had already edited and approved the monologue and that “her grade was conditioned upon her performing the monologue in front of the class.” So R.E. performed the monologue, allegedly not understanding some of the sexually explicit content it contained.

When the parents learned of the assignment, they went to their daughter’s assistant principal, who agreed that the assignment was inappropriate and said that the R.E. could have said “no” if the assignment made her uncomfortable, suggesting that it was the student’s fault for not refusing the assignment.

After their grievance was dismissed by the school board, the parents sued for the violation of their daughter’s First Amendment right against compelled speech. The District moved to dismiss. Judge Dorsey relied on the Tenth Circuit decision in Axson-Flynn v. Johnson applying the test set forth in the Supreme Court’s decision in Hazelwood Sch. Dist. v. Kuhlmeier.

Because the monologue assignments were part of the theater program’s curriculum, the Axson-Flynn court applied Hazelwood and found that the school could proscribe or compel that speech if it had a legitimate pedagogical purpose to do so. The court ultimately concluded that “the school sponsored the use of plays with [] offending language in them as part of its instructional technique” to prepare “students for careers in professional acting” and refused to second-guess the “pedagogical wisdom” of that goal. I follow the Tenth Circuit’s well-reasoned lead and apply the Hazelwood standard to R.E.’s compelled-speech claim….

That a school could “proscribe or compel” speech that had a “legitimate pedagogical purpose” is one thing. But whether that was the case is another, and whether the court should simply accept the school’s position and “refuse to second-guess the ‘pedagogical wisdom’” has become the line to be determined.

Plaintiffs allege that the profanity-laden monologue not only did not advance any academic purpose but “flies in the face of that compelling government interest.” They cite to CCSD’s policy prohibiting “verbal abuse of a student by an employee,” which is defined to include “the use of any form of profanity in the classroom,” and to the student code of conduct, which prohibits “content that is profane and/or of an obscene nature,” to suggest that CCSD has no pedagogical leg to stand on. While those policies do not directly foreclose the use of profanity in assignments that may serve an academic purpose—for example, having students read a literary classic that contains swear words or sexual themes in order to broaden their perspectives—plaintiffs sufficiently allege that requiring this particular assignment did not fulfill a legitimate educational purpose within the context that it was placed: a high school classroom.

The obvious comparison is to an assignment reading a Mark Twain passage that included the n-word. But then, that’s Mark Twain and carries with it well-established literary value. A monologue written by a classmate, even with the editing and approval of the teacher, isn’t Twain.

It can well be argued that writing anything, reading anything and performing a monologue of anything serves some educational purpose. After all, writing, reading and performing are all skills regularly taught in school, at least in theater class for the latter. But does that answer the question, or does there need to be some further justification when the monologue to be performed is not only sexually explicit, but involves the lesbian perspective? To some, the answer will be a resounding “yes,” that teaching students about gay people’s sexuality is educational indeed.

But the defendants do not point to any case that holds that courts must simply take schools at their word that every assignment fulfills a legitimate purpose merely because it was on the curriculum, particularly in a situation like this one, in which the type of language contained in that curriculum is similar to language which the Supreme Court has held is a school’s prerogative to proscribe [citing Bethel School Dist. No. 403 v. Fraser (1986)].

Without deciding that the assignment lacked pedagogical value, Judge Dorsey denied the motion to dismiss at this stage since the District merely asserted the doctrine without offering what, if any, value the assignment had.

At VC, Eugene Volokh questions the rationale of the holding, though he supports the judge’s generally favoring a teacher’s authority to compel uncomfortable speech, which might reflect a bit of an academic’s self interest.

I’m not sure this analysis is entirely correct, but I’m glad that the court recognizes that teachers can generally require students to perform important works even when they contain words or ideas the student disapproves of. I think the court here is influenced not just by the sexually themed character of the compelled speech, but by the speech being required just because it’s reading a classmate’s work, and not because of any evaluation of the work’s literary significance.

Much as I appreciate Eugene’s position, are we at the point where there are no longer any lines of propriety in what a public school teacher can require of a student? Can it be a monologue in praise of Pol Pot or the benefits of suicide? If there is no test of pedagogical value, then there is no line a teacher can’t cross in her zeal to educate children.

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