E.g., Evans–Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332, 340 (6th Cir.2010); Borden v. Sch. Dist. of East Brunswick, 523 F.3d 153, 171 (3d Cir.2008) (holding under Pickering-based analysis that school could prohibit faculty participation in student-initiated prayer); Lee v. York Cnty. Sch. Div., 484 F.3d 687, 700 (4th Cir.2007) (holding under a Pickering-based analysis that a school board did not infringe the rights of a teacher when it ordered him to remove religious material from a classroom bulletin board); Brammer–Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1204 (10th Cir.2007); Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir.2007); Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 479–80 (7th Cir.2007) (applying Pickering-based test and holding that “the [F]irst [A]mendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system”). We see no reason to depart from their company.
To start, in-classroom speech is "not the speech of a 'citizen' for First Amendment purposes" and therefore "does not implicate . . . First Amendment rights." Brown, 824 F.3d at 715 (citing Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007)); see Kluge v. Brownsburg Cmty. Sch. Corp., 64 F.4th 861, 892 (7th Cir. 2023) ("The district court correctly held that when Kluge was addressing students in the classroom, his speech was not protected by the First Amendment.").
It is generally true, as one court explained, "that those authorities charged by state law with curriculum development [may] require the obedience of subordinate employees, including the classroom teacher." Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007) (alteration in original) (emphasis added).
Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling." Mayer v. Monroe Cty. Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007). Because of the compulsory nature of education, we have noted in the First Amendment context:
Public schools can discipline both students and teachers for their speech in certain situations. SeeHazelwood Sch. Dist. v. Kuhlmeier , 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) ; Mayer v. Monroe Cnty. Cmmty. Sch. Corp. , 474 F.3d 477, 480 (7th Cir. 2007). The Seventh Circuit has stated that the First Amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics or advocate viewpoints that depart from the curriculum adopted by the school system.
Expression is a teacher's stock in trade, the commodity she sells to her employer in exchange for a salary." Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007). And if it is the school board that hires that speech, it can surely "regulate the content of what is or is not expressed," Rosenberger v. Rector Visitors of the Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), what is expressed in other words on its behalf.
In this non-college, primary-secondary school setting, generally speaking, “public-school teachers must hew to the approach prescribed by principals (and others higher up in the chain of authority).” Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir.2007) (citation omitted); see also Clark v. Holmes, 474 F.2d 928, 931 (7th Cir.1972) ( “[A]cademic freedom [is not] a license for uncontrolled expression at variance with established curricular contents....”). This is because “the school system does not ‘regulate’ teachers' speech so much as it hires that speech,” and because the attendance of the students who are subject to that speech is compulsory (unlike college students, who choose to go).
Although it has not expressly split from these other Circuits in any directly analogous case, the Seventh Circuit has been somewhat more hesitant to sidestep Garcetti in adjacent contexts. See Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477, 478-80 (7th Cir. 2007) (applying Garcetti to a First Amendment claim brought by an elementary school teacher who claimed she was fired after she "took a political [anti-Iraq war] stance during a current-events session in her class," but caveating that "[h]ow much room is left for constitutional protection of scholarly viewpoints in post-secondary education was left open in Garcetti . . . and need not be resolved today"); Renken v. Gregory, 541 F.3d 769, 770, 773 (7th Cir. 2008) (applying Garcetti to a First Amendment claim brought by a university professor who alleged he was retaliated against after he "complained about the University's use of grant funds"); see also Porter v. Bd. of Trustees of N. Carolina State Univ., 72 F.4th 573, 578, 583 (4th Cir. 2023) (applying Garcetti to a professor's "sarcastic[ ]" email to colleagues that voiced his concern that a faculty search committee had " 'cut corners' in vetting a candidate 'out of a desire to hire a Black scholar whose work focused on racial issues,' " re
Id. The Seventh Circuit employed the same reasoning in Mayer v. Monroe County Community School Corporation , 474 F.3d 477 (7th Cir. 2007). It found "that teachers hire out their own speech and must provide the service for which employers are willing to pay."
This is not our first opportunity, however, in which to confront that question. See Mayer v. Monroe Cnty. Cmty. Sch. Corp. , 474 F.3d 477 (7th Cir. 2007). In Mayer, we concluded that a teacher's in–classroom speech is not the speech of a “citizen” for First Amendment purposes.