Thomas E. Wheeler, II*
In the case of Helland v. South Bend Community School Corp.(1)
the Seventh Circuit directly faced the issue of the collision between
a primary- or secondary-school teacher's purported right of academic
freedom to interject religious materials into the classroom under
either the First Amendment's Free Speech or Free Exercise Clauses
with a school's obligation to limit such activity under the First
Amendment's Establishment Clause. The Helland case presented the
Supreme Court with an excellent opportunity to clarify this issue
and to delineate a bright line test in this area, which is sorely
needed as schools receive more and more challenges wherein individuals
and entities seek to interject religion into the classroom, particularly
from teachers based upon this purported right to academic freedom.
Unfortunately, the Court passed that opportunity up by denying certiorari
Peter Helland was initially employed by the South Bend Community
School Corporation in 1979 as a substitute teacher. Helland is a
deeply religious individual whose "Christian and Gideon beliefs
require that he carry a Bible whenever physically possible and he
holds a bona fide and sincerely held religious belief and conviction
that he must comply with these beliefs." Helland professed
a "Constitutionally protected Christian style of teaching"
and posits that "some teachers and administrators did not want
me in their public schools because my Christian witness was a bother
to them." As part of his Christian style of teaching and his
Christian witness Helland was involved in numerous evangelistic
programs both on and off school grounds. Helland admitted that "I
have frequently passed out new testaments with my fellow Gideons
on the public school sidewalks throughout the eight years I substitute
taught." In connection with these activities Helland was arrested
in October of 1983 for unlawfully proselytizing and passing out
religious tracts on and around the grounds of South Bend Riley High
School. Helland was also an active participant in Young Life "ministering
to Adams and Clay high school students" and as a lay minister
at a number of local juvenile detention facilities.
During the period of time Helland taught as a substitute, numerous
teachers and principals prepared negative evaluations of Helland's
performance and asked that he not be permitted to substitute teach
for their classes and in their buildings. Helland conceded that
many such complaints were in his personnel file, but contested the
truth of the complaints or the motivation of the people making the
complaints. These complaints, as well as Helland's refusal to stop
interjecting religion into the classroom despite repeated warnings,
culminated in the school's decision to remove Helland from the substitute
teachers' list entirely on November 10, 1993. Helland acknowledged
that in addition to carrying and reading a Bible in class, over
the years he had also frequently been engaged in other actions involving
in-class religious proselytizing.
Helland had been warned as early as September of 1986 by the human
resources director at South Bend to stop interjecting religion into
the classroom and to stop reading his Bible in class or "he
would have no choice but to fire me if I did it again." Yet
Helland continued his behavior. Helland was again specifically warned
in December of 1992 to stop interjecting religion into the classroom,
yet again he failed to do so despite the fact that "[t]his
should be considered as his last warning." In April of 1993,
Superintendent Komasinski met with him and warned him in writing
that his teaching performance was deficient and that he should stop
interjecting his religious beliefs into the classroom or the School
would take action. After seven years of toleration and attempted
accommodation, despite repeated flagrant violations of these directives,
and as a direct consequence of an incident in October 1993, the
school believed that it was left with no other choice. In November
1993, Helland was notified that his name had been removed from the
substitute teachers' list "due to not following lesson plans,
problems with classroom management and on some occasions you interjected
reading religious-oriented materials into portions of your classroom
In October 1994, Helland filed a pro se complaint in the United
States District Court for the Northern District of Indiana. In the
Complaint Helland asserted that the School's actions in removing
him from the substitute teacher's list violated his rights under
Title VII of the Civil Rights Act of 1964(3) to be free from religious
discrimination. Specifically he alleged that he was "terminated
for constitutionally protected religious activities and practices
[sic] . . ., " that he was not "given a chance to tell
the truth as [he] saw it," that "poor teaching performance
was a pretext used to get rid of me," and finally, that his
"constitutionally protected Christian style of teaching was
perhaps irritating to some people." Helland then obtained the
assistance of the Center for Law and Justice and was represented
by legal counsel from that organization when, in January 1995, he
filed an amended complaint, which in addition to the Title VII claims,
also presented claims that the School's actions violated his First
Amendment rights as enforced under 42 U.S.C. §1983, as well
as the Religious Freedom Restoration Act ("RFRA")(4).
The amended complaint contained additional allegations that the
School Corporation violated the First Amendment and RFRA by discharging
him "for carrying his Bible to his place of employment and
silently reading his Bible in privacy during his job breaks."
In December 1995, the District Court entered summary judgment in
favor of the school, finding first that Helland waived a due process
claim because he failed to raise the issue in either his complaint
or in his summary judgment memorandum. Second, the court found that
Helland failed to present evidence that his religious beliefs, rather
than his religious conduct, was the reason for his removal from
the substitute teacher's list, and that the school articulated "ample
reason, without regard to Helland's religion" to dismiss him.
With respect to the RFRA claim, the court held that given his past
conduct, Helland's removal from the substitute teacher list was
the least restrictive means of furthering the compelling interests
in both avoiding an Establishment Clause violation and in having
substitute teachers follow lesson plans and curriculum established
by the regular classroom teacher and the school. The District Court
chose to avoid the issue of the constitutionality of RFRA because
Helland failed to offer "sufficient evidence from which a reasonable
trier of fact could find that the School Corporation substantially
burdened Helland's exercise of his religion without a compelling
In February 1996, Helland, with the assistance of a law professor,
filed his appeal in the United States Court of Appeals for the Seventh
Circuit. That next August, following extensive briefing and oral
argument, the Seventh Circuit affirmed summary judgment in the school's
favor finding that Helland was removed from the substitute teachers'
list "because he failed to follow lesson plans, failed to control
his students, and improperly interjected religion into his classrooms."
The Seventh Circuit held that the school articulated two permissible
legitimate nondiscriminatory reasons for removing Helland from the
substitute teacher list: unsatisfactory job performance and defiance
of repeated warnings against interjecting his religious beliefs
into the classrooms. Because Helland produced no evidence that the
reasons proffered by the school were a pretext for discrimination,
the Seventh Circuit held that Helland was not removed from the substitute
teacher list "because of his religion itself."(5)
On the RFRA claim, the Seventh Circuit held that "removing
Helland from the substitute teacher list was the least restrictive
means of furthering the compelling governmental interest in avoiding
the unconstitutional interjection of religion" into the classroom,
as the school had repeatedly attempted to accommodate Helland's
religious practices, and had given him numerous warnings to stop
interjecting his religious beliefs into the classroom. Further,
the Court found that despite Helland's protestations to the contrary,
his own behavior revealed that he knew he was required to follow
lesson plans and refrain from discussing religion in the classroom.(6)
Finally, the Seventh Circuit found that contrary to Helland's argument
that the school infringed upon his right to carry his Bible to work
and to privately read it during job breaks, he offered no evidence
that he was ever prevented from either carrying his Bible or reading
it in privacy. The school only prohibited him from reading it in
class during class time.(7)
This case tested the proposition that as an adjunct to their First
Amendment rights, teachers have a right to "academic freedom"
which is inviolate. See e.g. Wieman v. Updegraff (8): "State
inhibition of academic freedom is strongly disfavored."(9)
But the "academic freedom" cases arise primarily in the
college or university context. With respect to teachers in primary
and secondary schools, the Supreme Court has been more willing to
acknowledge certain restrictions on this right.
In Hazelwood School District v. Kuhlmeier(10) the Supreme Court
held that "educators do not offend the First Amendment by exercising
control over the style and content of student speech in school-sponsored
expression so long as their actions are reasonably related to legitimate
pedagogical concerns."(11) Several courts have taken this logic
and applied it to teachers' challenges to curricular controls imposed
by schools. For example, in Krizek v. Cicero-Stickney Township High
School District No. 201(12) the court stated that "[t]he court
agrees with that application and finds that the Kuhlmeier standard,
which blends well with the standard previously articulated in this
circuit, applies to challenges against school administration rules
regarding curriculum challenges." See also Virgil v. School
Board.(13)(14) Similarly, in Bradley v. Pittsburgh Board of Education(15)
the Third Circuit stated that "no court has found that teachers'
First Amendment rights extend to choosing their own curriculum or
classroom management techniques in contravention of school policy
In Silano v. Sag Harbor Union Free School District Board(17) the
Second Circuit discussed the restrictions a school could legitimately
impose on teachers with respect to in-class speech, but noting that
"[t]he Supreme Court consistently has held that teachers and
students do not "shed their constitutional rights to freedom
of speech . . . at the schoolhouse gates." Tinker v. Des Moines
Community School District.(18) The court also has recognized that
public schools may limit classroom speech to promote educational
goals. See Hazelwood School District v. Kuhlmeier(19) and Tinker.(20)
In light of these competing concerns, the Supreme Court has held
that educators may limit the content of school-sponsored speech,
so long as the limitations are "reasonably related to legitimate
pedagogical concerns." Hazelwood, 484 U.S. at 273, 108 S.Ct.
Thus, the ultimate authority to determine "'what manner of
speech in the classroom . . . is inappropriate properly rests with
the school board,' rather than the federal courts."(21) Whether
a school official's action is reasonably related to a legitimate
pedagogical concern "will depend on, among other things, the
age and sophistication of the students, the relationship between
teaching method and valid educational objective, and the context
and manner of the presentation."(22)
This idea that a school may limit a teacher's speech when there
are legitimate pedagogical concerns is usually expressed in the
context of curricular control, and it appears that when a teacher
deliberately violates the approved curriculum, there will generally
be no First Amendment protection accorded the teacher's speech.
See Bradley(23) and Kirkland v. Northside Independent School District.(24)
When, however, a teacher is following the approved curriculum but
is teaching it in a slightly different way, then the teacher's First
Amendment rights may be implicated. This distinction was succinctly
summarized in Krizek.(25) This contrast can be also seen in Bradley,
where the teacher deliberately departed from the curriculum. In
Stachura v. Truszkowski(26) the teacher, utilizing a board approved
textbook, taught a chapter on reproduction to the students. He also
apparently received the approval of the principal of the high school
for his choice of teaching methods. The Sixth Circuit therefore
found that "plaintiff Stachura's First Amendment rights were
infringed and that his exercise of `academic freedom' had followed
rather than violated his superior's instructions."(27) Based
upon these cases, there can be no doubt that teachers possess a
strong but not unfettered interest in academic freedom to teach
materials that they feel are necessary to the instruction of the
students entrusted to their care, so long as they do so within the
curriculum mandated by the school.
Yet some courts, like the Congress in enacting the Equal Access
Act, have made the jump from college or university teaching, where
a teacher's First Amendment rights are paramount, to the "special
environment" of primary and secondary schools. In doing so
they have ignored the reasoned limitations on the latter's free
speech rights. For example, in Webb v. Lake Mills Community School
Corporation(28) the court held that the rationale for academic freedom
in colleges and universities "must extend to high school and
even elementary teachers. The state interest in limiting the discretion
of teachers grows stronger, though, as the age of the students decreases;
thus, the Fourteenth and First Amendments do not necessarily give
teachers of younger students the same 'academic freedom' that they
give to teachers of college students." Interestingly, the Eleventh
Circuit went in directly the opposite direction in Bishop v. Aronov(29),
concluding that even a university "as an employer and educator
can direct [a professor] to refrain from expressions of religious
viewpoints in the classroom and like settings."(30) In Cohen
v. San Bernardino Valley College(31) the court noted that academic
freedom cases from colleges do not apply with full force to secondary
schools, and "despite eloquent rhetoric on 'academic freedom,'
the courts have declined to cede all classroom control to teachers."(32)
These decisions ignore fundamental distinctions between colleges
and universities and primary and secondary schools. The main distinction
is the impressionable nature of students of the latter, recognized
in decisions such as Tilton v. Richardson(33) and Widmar v. Vincent.(34)
Another case, Edwards v. Aguillard,(35) involved the invalidation
of a Louisiana statute that required the teaching of "creation-science"
in lieu of evolutionary theory, and added the elements of the non-voluntary
nature of elementary and secondary public school attendance as well
as the teacher's role-model status for students of that age.
Similarly, in Lee v. Weisman(36), which concerned prayers at a
graduation ceremony, the Supreme Court held that a school violated
the Establishment Clause by presenting an invocation and benediction
by a member of the clergy during high school and middle school graduation
ceremonies. In so holding the Supreme Court noted the tender age
of the students as well as adolescent susceptibility to peer pressure.
The decisions from both the United States Supreme Court and the
lower courts seem to support the proposition that there exists a
bright line distinguishing between a teacher's academic freedom
rights in colleges and universities and in public primary and secondary
schools with respect to religious speech. This is because the "symbolism
of a union between church and state is most likely to influence
children of tender years, whose experience is limited and whose
beliefs consequently are the function of environment as much as
free and voluntary choice." Grand Rapids School District.(37)
But there is a significant amount of confusion over this issue in
the lower courts, with some courts extending the teacher's academic
freedom rights into the primary and secondary schools and others
restricting such rights even in the college or university context.
Unfortunately, the Supreme Court's denial of certiorari in Helland,
perhaps the bright-line case tailor-made for clarification of this
critical distinction, represents a lost opportunity for the high
court to do so.
*Thomas E. Wheeler is a partner in the Indianapolis office of Kightinger
& Gray and practices litigation and school law. This piece is
a condensed version of a forthcoming piece to be published in West's
Education Law Reporter.
- 93 F.3d 327, 331 (7th Cir. 1996).
- __ U.S. __, 117 S. Ct. 769, 65 U.S.L.W. 3503
(January 21, 1997).
- 42 U.S.C. § 2000e et seq.
- 42 U.S.C. § 2000bb.
- Helland, 93 F.3d at 330.
- Id., 93 F.3d at 331-32.
- Id., 93 F.3d at 331.
- 344 U.S. 183 (1952). (Frankfurter, J. concurring).
- Id., 344 US at 195 (Frankfurter, J. concurring).
- 484 U.S. 260 (1988).
- Id., 484 U.S. at 272.
- 713 F.Supp. 1131, 1139 (N.D. Ill. 1989).
- 677 F.Supp. 1547, 1551 (M.D.Fla. 1988) aff'd,
862 F.2d 1517 (11th Cir. 1989).
- The reader must be careful to distinguish
between assertions of First Amendment rights for in-class speech
verses out-of-class speech. The courts are much more likely to
protect a teacher's First Amendment rights when a school seeks
to discipline the teacher for out-of-class comments: "[I]t
cannot be gainsaid that the State has interests as an employer
in regulating the speech of its employees that differ significantly
from those it possesses in connection with regulation of the speech
of the citizenry in general." Pickering v. Board of Education,
391 U.S. 563, 568 (1968).
- 910 F.2d 1172 (3rd Cir. 1990).
- Id., 910 F.2d at 1176. But see Moody v. Jefferson
Parish School Board, 2 F.3d 604, 606 (5th Cir. 1993) when the
Fifth Circuit recognized the existence of a constitutional right
to academic freedom but declining to delineate the parameters
of that right.
- 42 F.3d 719 (2nd Cir. 1994).
- 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.
- 484 U.S. 260, 266-267 108 S.Ct. 562, 98 L.Ed.2d
- 393 U.S. at 506-07, 89 S.Ct. at 736.
- Id. at 267, 108 S.Ct. at 568 (quoting Bethel
School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159,
3164, 92 L.Ed.2d 549 (1986) (internal citation omitted)).
- Silano, 42 F.3d at 722-723.
- 910 F.2d at 1176.
- 890 F.2d 794, 795 (5th Cir. 1989)(Probationary
teacher was not permitted to modify approved reading list for
high school history class notwithstanding First Amendment rights.).
- Id., 713 F.Supp. at 1137.
- 763 F.2d 211 (6th Cir. 1985).
- Id., 763 F.2d at 215.
- 344 F.Supp. 791 (N.D. Iowa 1972).
- 926 F.2d 1066 (11th Cir. 1991).
- Id., 926 F.2d at 1077.
- 883 F.Supp. 1407 (C.D.Cal. 1995).
- Id., 883 F.Supp. at 1414.
- Id., 473 U.S. at 383.
- These holdings have been echoed by the lower
courts. For example, in Brandon v. Board of Education, 635 F.2d
971 (2nd Cir. 1980) the Second Circuit held that "[o]ur nation's
elementary and secondary schools play a unique role in transferring
basic and fundamental values to our youth. To an impressionable
student, even the mere appearance of secular involvement in religious
activities might indicate that the state has placed its imprimatur
on a particular religious creed. This symbolic reference is too
dangerous to permit." Id., 635 F.2d at 973.
- 482 U.S. 578 (1987).
- 505 U.S. 577 (1992).
- 473 U.S. at 390.