Fifth Circuit Affirms Dismissal of Lawsuit Against Texas Board of Education for Refusal to Adopt Textbook

The U. S. Fifth Circuit has upheld a lower court dismissal of a lawsuit against the Texas State Board of Education alleging that its refusal to adopt a textbook violated the plaintiffs’ First Amendment rights. The lower court dismissed the case on a 12(b)(6) motion. In its ruling the Fifth Circuit reviewed the lower court’s decision de novo.

“Appellants argue that the district court erred in concluding both that Hazelwood does not require the SBOE’s decision to be viewpoint-neutral and that the Board’s reasons for its decision were “reasonably related to legitimate pedagogical concerns.” Appellees argue, however, that the selection and use of textbooks in the public schools is government speech, not a forum, and not subject to the First Amendment rights of either textbook authors or students. Appellees argue, alternatively, that if the district court was correct in applying the Hazelwood framework, the court was correct when it concluded that viewpoint neutrality is not required.

A. The first question we must answer is whether Appellant Chiras alleged a violation of his First Amendment rights as a textbook author by the SBOE when it declined to place his textbook on the conforming or nonconforming list of textbooks for use in public school classrooms. Although the Supreme Court has not answered this question directly, the Court has given us ample guidance to allow us to comfortably answer in the negative.

1. Any discussion of the constitutionality of a state’s decision to reject a textbook for its public schools must begin with the recognition that the states enjoy broad discretionary powers in the field of public education. Central among these discretionary powers is the authority to establish public school curricula which accomplishes the states’ educational objectives. …The Supreme Court, therefore, has cautioned that all First Amendment rights accorded to students must be construed “in light of the special characteristics of the school environment,” and that the federal judiciary should not “intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” …The Court’s guidance regarding our limited review of the broad authority of the school board over its own policy has been amplified by the Court’s recent cases addressing government’s authority over its own message. The government undoubtedly has the authority to control its own message when it speaks or advocates a position it believes is in the public interest. …

Because the Board must necessarily exercise its editorial discretion in selecting which private entities will convey the message the state selects, forum analysis and the viewpoint neutrality requirement are inapposite in this case. As a result, there is no forum to which Appellant Chiras can claim access as a textbook author.”

2. Much of the Appellants’ claim depends on the argument that the SBOE’s decision in this case is subject to the restrictions developed by the Supreme Court in Hazelwood. In Hazelwood, a high school principal removed several pages of a school newspaper containing an article describing student’s experience with pregnancy and an article on the impact of divorce on students….The Court found that the school newspaper was a nonpublic forum, established to allow students to express themselves within the context of the school’s curriculum and under the supervision of school officials. ….. The Court concluded that regulation by the school was permissible so long as “editorial control over the style and content of student speech in school-sponsored expressive activities is reasonably related to legitimate pedagogical concerns.”…Appellants argue that Hazelwood also requires that the editorial control be exercised in a viewpoint-neutral manner….

In order to apply Hazelwood’s principles, we would have to find that the SBOE opened its lists of conforming and nonconforming textbooks as a forum, to which textbook authors and publishers might claim a right of access. We have already concluded that the SBOE has not done so, and instead created a program by which the state sets and implements its educational policy. Although the state may utilize private textbook authors, it does so to facilitate transmission of its own approved message, not a message of the authors’ choosing. ” We note that there is no strong consensus among the circuit courts regarding the application of First Amendment principles to the selection of curricular materials by school boards. However, our conclusion that the selection and use of textbooks in the public school classrooms constitutes government speech, and therefore that Hazelwood does not apply, is consistent with the Ninth Circuit’s conclusion in Downs v. Los Angeles Unified Sch. District., 228 F.3d 1003, 1012 (9th Cir. 2000). …

Because we conclude that the selection of curricular materials by the Board is clearly government speech based on the principles applied by the Supreme Court in Rust, Rosenberger, Forbes, Finley, and ALA, we need not adopt this multi-factor test in order to resolve this dispute. However, we note that the application of the test in this case produces a result consistent with our conclusion. The district court found that the “central purpose,” “editorial control,” and “ultimate responsibility” factors all weighed in favor of finding that the use and selection of textbooks in public schools constitutes government speech. The district court found that only the “literal speaker” factor weighed in favor of finding that the use of the textbook was the private speech of Chiras. Nonetheless, the district concluded on the basis of this single factor that the speech in the case was not government speech, but rather private speech which bears the imprimatur of the government….

Because we conclude that the Board’s selection of textbooks is government speech, Hazelwood does not apply, and there is no forum to which Chiras might assert a right of access under the First Amendment.

B. Our conclusion that the SBOE’s selection and use of textbooks in public school classrooms is government speech and not a forum for First Amendment purposes means only that Appellant Chiras may not assert a cognizable right of access to the approved list of textbooks. The conclusion that no forum exists in this case does not necessarily preclude, however, Appellant Rodriguez’s asserted right as a student to receive the information in Chiras’ textbook from the school. Therefore, the second question we must answer is whether Appellant Rodriguez alleged a violation by the SBOE of her First Amendment rights as a student when it declined to place Chiras’ textbook on the conforming or nonconforming lists.Appellants’ primary claim to support for a student’s right to receive information is the Supreme Court’s decision in Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). In that case, the Court addressed the decision of a school board to remove certain books it found objectionable from a school library. The Court, in a plurality opinion authored by Justice Brennan, concluded that a student may assert a cognizable right to receive ideas, which restricts the ability of the school to exercise discretion over the materials removed from the school library….However, the Court carefully circumscribed that potential right, acknowledging that the case “does not involve textbooks” and that the Court’s conclusion “does not intrude into the classroom, or into the compulsory courses taught there.” …

Because Pico addressed the removal of an optional book from the school library, not the selection of a textbook for use in the classroom, we decline to apply Pico to the facts before us. Even if we were to assume arguendo that the students’ right to receive knowledge recognized by Justice Brennan’s plurality opinion in Pico controlled our decision in this case, the Board’s decision to exclude Chiras’ textbook from the conforming and nonconforming lists is firmly within the scope of its discretion. …

Appellants, however, fail to plead any specific facts which demonstrate that the SBOE’s decision was motivated by “narrowly partisan or political” considerations. Although ten of the SBOE members voted against approval of Chiras’ textbook, Appellants have identified only three comments by Board members which they allege demonstrate their claims. Moreover, only one of these comments refers specifically to Chiras’ textbook. Appellants allege that Appellee McLeroy wrote an article published on the CSE website in which he suggested that the SBOE rejected Chiras’ textbook because it was based on a “false premise” and that the textbook’s “claim that the root cause of environmental problems is economic growth is simply wrong.” While there may be political controversy surrounding environmental issues, Appellants offer no facts to suggest that McLeroy’s comments were based on partisan, rather than scientific disagreement. …

IV.

We affirm the district court’s judgment dismissing Appellants’ First Amendment claims, although we do so on different grounds. First, the selection of textbooks by the state for use in public school classrooms is government speech, and is not subject to the forum analysis of Hazelwood or the viewpoint neutrality requirement. As a result, there is no forum to which Appellant Chiras can claim a right of access. Second, even assuming that public school students possess a cognizable right to receive information, that right does not extend to the selection of textbooks for use in the classroom. Because we conclude that Appellant Chiras has not stated a claim as a textbook author to access the Board’s list of approved textbooks and Appellant Rodriguez has not stated a claim as a student to compel the Board to select textbooks of her choosing, we affirm the district court’s judgment in favor of Appellees.”

The SBOE may permissibly exercise a wide degree of discretion in performing its traditional function of selecting a curriculum which promotes the state’s chosen educational policy. In doing so, it will necessarily reject some instructional material to which some students may desire to have access. Nonetheless, where the Board is selecting textbooks for use in the classroom, students have no constitutional right to compel the Board to select materials of their choosing. As a result, Appellant Rodriguez has no cognizable right to compel the Board to place Chiras’ textbook on the approved list of textbooks.

Read the entire ruling here.