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MURRAY v. PITTSBURGH BD. OF PUB. EDUC.

March 25, 1996

DIANE MURRAY, Plaintiff,
v.
PITTSBURGH BOARD OF PUBLIC EDUCATION, LEE B. NICKLOS, individually and in her capacity as Director of Human Resources, and WILLIAM NICHOLSON, individually and in his capacity as a Principal of Letsche Education Center, Defendants.



The opinion of the court was delivered by: LANCASTER

 GARY L. LANCASTER,

 District Judge

 March 25, 1996

 This action arises under the Civil Rights Act of 1871, 42 U.S.C. ┬ž 1983. Plaintiff, Diane Murray, is a high school English teacher employed by the Pittsburgh Board of Public Education. She challenges a school policy that prohibits her from using a classroom management technique called "Learnball"; organizing an after-school activity called a "Learnball Superbowl"; and displaying Learnball symbols, literature, and related paraphernalia in her classroom. Plaintiff seeks a declaratory judgment that the policy constitutes an unconstitutional restraint of free speech in violation of the First and Fourteenth Amendments to the United States Constitution. She also seeks permanent injunctive relief.

 The matter was tried without a jury on February 13, 14, and 16, 1996. For the reasons that follow, the court finds that defendants' policy does not violate plaintiff's constitutionally protected right to free speech, and accordingly, the court will enter judgment in favor of defendants and against plaintiff.

 I.

 In accordance with Fed.R.Civ.P. 52, the following constitutes the findings by the court. Additional findings will be discussed throughout this memorandum in context.

 Plaintiff is a tenured high school English teacher employed by the Pittsburgh Board of Public Education ("Board") and assigned to Letsche Alternative Learning Center ("Letsche" or "School"). Letsche is an alternative high school that provides instruction for at-risk students who have had trouble at their home schools or who have had legal problems. Letsche also has a program for pregnant students.

 Plaintiff is a proponent of a classroom management technique known as Learnball. Learnball is organized along a sports format. It requires a styrofoam ball and a plastic backboard and hoop, which are marked with the Learnball-registered logo. Students divide into teams, elect team leaders, and compete for points which are awarded for such things as coming to class on time, completing assignments on time, and scoring baskets. Students who perform well academically and obey class rules are rewarded with Learnball merit certificates, are permitted to play a radio in the classroom, and are permitted to shoot baskets in the classroom. Learnball can also involve an activity called a "Learnball Superbowl." This is an after-school activity organized along the Learnball format that involves teams which compete against each other as in the classroom. It also involves talent shows and other displays of student talent.

 Learnball is purely a motivational technique; it does not effect the manner in which a teacher presents course material. Learnball strategies, such as playing the radio, shooting baskets, winning merit certificates, and scoring points, are used solely to motivate students and do not alter the way in which the students are instructed.

 Teachers who want to utilize the Learnball technique must become members of the "Learnball League International" of which plaintiff is an officer. Membership requires a fee of approximately $ 85 to cover the cost of Learnball materials, such as the Learnball Handbook and other literature and an adhesive Learnball-registered logo. The Learnball League International directs member teachers to participating toy stores that sell the required hoop and foam ball. Teachers are not authorized to use the Learnball technique without becoming members of the Learnball League International, without the required hoop and ball, or without the handbook and accompanying literature. The only teacher in the Pittsburgh Public School District who is currently a member of the Learnball League International is plaintiff, and no other teacher has approached the Superintendent of Pittsburgh Public Schools about using Learnball.

 Plaintiff began using Learnball at Letsche in 1976. Shortly before the start of the 1988 school year, however, Mr. Vernon Phillips, who was then Principal of Letsche, notified plaintiff that effective the first day of the school year she could no longer use Learnball in her classes. He stated that the Board did not approve of Learnball and that in his opinion Learnball did not benefit the students.

 In response to Mr. Phillips's directive, plaintiff filed suit in this court--similar to the instant suit--to enjoin the Board and numerous school officials from prohibiting her use of Learnball. Additionally, she filed a union grievance under the collective bargaining agreement. The end result of this prior round of litigation was that plaintiff was prohibited from using the Learnball technique in the classroom.

 In August 1994, for reasons that are unclear, plaintiff formed the belief that she had permission to resume Learnball. Plaintiff began using Learnball in her classes without informing the new school principal, Dr. William Nicholson, that she intended to use Learnball and without receiving his permission to use Learnball. At the same time, plaintiff began discussing with students and faculty the possibility of organizing an after-school Learnball Superbowl. In addition, she began organizing small, daily Learnball contests in her classroom in preparation for the after-school event.

 Sometime thereafter, Dr. Nicholson observed a student in plaintiff's classroom reading aloud from a Learnball teaching manual. He also observed a Learnball hoop and styrofoam ball in plaintiff's classroom, as well as other Learnball literature, symbols, and paraphernalia. That same day, Dr. Nicholson told plaintiff that he would not allow Learnball to be used as a motivational strategy at Letsche. He ordered her to remove ...


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