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 in January.(2)

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 presentation."

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 interest."

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 or dictates."(16)

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. at 571.

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.

1. 93 F.3d 327, 331 (7th Cir. 1996).
2. __ U.S. __, 117 S. Ct. 769, 65 U.S.L.W. 3503 (January 21, 1997).
3. 42 U.S.C. § 2000e et seq.
4. 42 U.S.C. § 2000bb.
5. Helland, 93 F.3d at 330.
6. Id., 93 F.3d at 331-32.
7. Id., 93 F.3d at 331.
8. 344 U.S. 183 (1952). (Frankfurter, J. concurring).
9. Id., 344 US at 195 (Frankfurter, J. concurring).
10. 484 U.S. 260 (1988).
11. Id., 484 U.S. at 272.
12. 713 F.Supp. 1131, 1139 (N.D. Ill. 1989).
13. 677 F.Supp. 1547, 1551 (M.D.Fla. 1988) aff'd, 862 F.2d 1517 (11th Cir. 1989).
14. 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).
15. 910 F.2d 1172 (3rd Cir. 1990).
16. 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.
17. 42 F.3d 719 (2nd Cir. 1994).
18. 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed. 731 (1969).
19. 484 U.S. 260, 266-267 108 S.Ct. 562, 98 L.Ed.2d 592 (1988).
20. 393 U.S. at 506-07, 89 S.Ct. at 736.
21. 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)).
22. Silano, 42 F.3d at 722-723.
23. 910 F.2d at 1176.
24. 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.).
25. Id., 713 F.Supp. at 1137.
26. 763 F.2d 211 (6th Cir. 1985).
27. Id., 763 F.2d at 215.
28. 344 F.Supp. 791 (N.D. Iowa 1972).
29. 926 F.2d 1066 (11th Cir. 1991).
30. Id., 926 F.2d at 1077.
31. 883 F.Supp. 1407 (C.D.Cal. 1995).
32. Id., 883 F.Supp. at 1414.
33. Id., 473 U.S. at 383.
34. 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.
35. 482 U.S. 578 (1987).
36. 505 U.S. 577 (1992).
37. 473 U.S. at 390.