GRADING & THE
FIRST AMENDMENT
Presented by:
Haley Turner
Region 13 Curriculum Council
November 7, 2013
Goudeau v. East Baton Rouge Parish Sch. Bd.
• 5th Circuit decision issued October 7, 2013
• Louisiana case:
– Teacher claims that after she refused to comply
with principal’s grading policy and filed a formal
complaint, she was ultimately forced to accept a
transfer to another campus.
– Sued school and administrators for violation of her
freedom of speech rights under the First
Amendment.
The Allegations of Goudeau
• Alleged:
– The principal prohibited teachers from giving grades
lower than 60.
• Louisiana law prohibits schools from setting minimum
grades, similar to Texas law.
– Goudeau refused to comply with the principal’s rule
and the principal directed the office staff to change
the grades.
– The principal threatened to have Goudeau transferred
to another campus if she didn’t comply.
The Allegations of Goudeau
• Alleged:
– Goudeau reported the minimum grading policy to
the Assistant Superintendent and ultimately filed
a formal complaint.
– During the complaint process a determination was
made that the principal’s grading policy violated
state law.
– After the complaint was completed, the principal
transferred Goudeau to another campus.
Appearance of the First Amendment
• Goudeau claimed that adverse employment action
was taken against her for exercise of her free speech
rights.
• In order for her claim to move forward, she was
required to establish:
– (1) She suffered an adverse employment action;
– (2) She spoke as a citizen on a matter of public concern;
– (3) Her interest in the speech outweighs the government’s
interest in the efficient provision of public services; and
– (4) The speech precipitated the adverse employment
action.
Was the Speech Protected?
• Public school employees do have First Amendment rights to
freedom of speech while in the workplace, BUT…
• Employee speech is only protected by the First Amendment if
it is speech on a “matter of public concern.”
– Typically speech regarding the conditions of employment is not considered
speech on a “matter of public concern” and therefore is not protected.
• The Court said: The speech is protected!
– Speech reporting official misconduct, wrongdoing, or malfeasance
involves a matter of public concern.
– Goudeau was reporting a violation of state law.
• Goudeau was allowed to move forward with her suit.
What does Goudeau tell us?
• Employee objections to grading policies that
are in conflict with the law may constitute
protected speech under the First Amendment.
• It is important that all campus administrators
are familiar with the legal restrictions on
dictating teacher grade assignments and
changing teacher-determined grades.
Review of Texas Grading Laws
• Board Policy EIA (LEGAL) and (LOCAL)
• A school district shall adopt a grading policy (TEC §
28.0216):
– Must require a teacher to assign a grade that reflects the
student’s relative mastery of an assignment;
– May not require a teacher to assign a minimum grade for
an assignment without regard to the student’s quality of
work; and
– May allow a student a reasonable amount of time to make
up or redo an assignment or exam that the student failed.
Review of Texas Grading Laws
• Grades are final (TEC § 28.0214):
– Exam or course grade issued by a teacher is final
– An exam or course grade may not be changed
UNLESS the board of trustees determines that the
grade is
• arbitrary,
• erroneous, or
• not consistent with the school district grading policy
applicable to the grade.
Teacher Discretion and
Academic Freedom
• Academic freedom is the concept that educators
have freedom in the classroom with regard to
instructional techniques and generally the way
the course material is delivered.
• K-12 teachers have not been afforded academic
freedom to the same extent university professors
have.
• Teachers may object to grading policies or grade
related requests based on their academic
freedom to assign a grade.
Academic Freedom & Grading
• 5th Circuit Court of Appeals (Hills v. SFA Univ.)
– In 1982 the Fifth Circuit held that a teacher’s right to
award a grade was not an academic freedom as it was
not a “teaching method” protected under the First
Amendment.
• Commissioner of Education
– Teachers do not have the right under academic
freedom to award grades;
– Teachers must comply with the grading policy adopted
by the school board.
– If a district’s grading policy lacks clarity, then the
principal can interpret and give further directives.
Enforcing Grading Policies
• Texas law requires school boards to adopt a
grading policy.
– Teachers are required to comply with a school board’s
grading policy and a principal’s reasonable
interpretations of that policy.
• Review your grading policies and ensure they are
clearly communicated.
• Educate your principals: Review your district’s
campus-specific grading rules and ensure those
are in line with the board’s intent and are clearly
communicated and consistently applied.
GRADING & THE
FIRST AMENDMENT
Presented by:
Haley Turner
Region 13 Curriculum Council
November 7, 2013