Employment Law Daily Teacher’s use of ‘n-word’ during impromptu lesson was official speech, not protected
Monday, June 6, 2016

Teacher’s use of ‘n-word’ during impromptu lesson was official speech, not protected

By Kathleen Kapusta, J.D. A teacher’s in-classroom use of the n-word in front of his sixth-grade class during an impromptu lesson on racial epithets was speech pursuant to his official duties, ruled the Seventh Circuit, finding that his subsequent suspension did not implicate his First Amendment rights. Nor was the school’s policy so vague that his suspension violated the substantive due process component of the Fourteenth Amendment, the appeals court held, affirming the lower court’s grant of summary judgment in favor of his employer. “The Board may have acted in a short-sighted way when it suspended him for his effort to educate the students about a sensitive and socially important issue, but it did not trample on his First Amendment rights,” the court observed (Brown v. Chicago Board of Education, June 2, 2016, Wood, D.). Suspended. When the sixth grade teacher caught his students passing a note in class that contained music lyrics with the word “n****r,” he used the episode as an opportunity to discuss why such the word was hurtful and must not be used. The employee, however, was subsequently suspended for violating Sections 3-3 and 3-17 of the school’s employee discipline and due process policy. Section 3-3 prohibits “[u]sing verbally abusive language to or in front of students” and Section 3-17 prohibits “[v]iolating School rules, Board rules, policies or procedures that result in behaviors that disrupt the orderly educational process in the classroom, in the school, and may occur on or off the school grounds or assigned work location.” Because it incorporates violations of any other school rules, it sweeps in Section 4-2, a rule that prohibits “using racial, cultural, ethnic, or religious epithets, or threatening language.” The employee sued the school board and various personnel under Section 1983 alleging that his suspension violated his First Amendment rights, and that the school’s policy was so vague that his suspension violated the substantive due process component of the Fourteenth Amendment. The district court granted summary judgment to the board on both claims. First Amendment claim. Pointing out that pursuant to Garcetti, whether a public employee’s speech is constitutionally protected depends on whether he spoke as a citizen on a matter of public concern, the appeals court observed that the employee here emphasized he was speaking as a teacher and not as a citizen. While an employee does not speak as a citizen when he makes statements pursuant to his official duties, the court noted that the question remains whether the Garcetti rule applies in the same way to “a case involving speech related to scholarship or teaching.” Although the Supreme Court left this issue for another day, the Seventh Circuit addressed it in Mayer v. Monroe Cnty. Cmty. Sch. Corp., holding that teacher’s in-classroom speech is not the speech of a “citizen” for First Amendment purposes. Here, because the employee gave his impromptu lesson on racial epithets in the course of his regular grammar lesson to his sixth grade class, his speech was pursuant to his official duties. That he deviated from the official curriculum did not change this. Further, said the court, maintaining classroom order was one of his most basic duties. Thus, to the extent his discussion of racial slurs was an attempt to quell student misbehavior, it was still pursuant to his official duties. Due process claim. Turning to the due process claim, the court noted that after the notice of preliminary hearing was issued, the principal dropped the charges based on Section 3-17 and suspended the employee for five days based solely on the Section 3-3 charge of use of verbally abusive language. The board, however, reinstated the Section 3-17 charge, entered a finding of misconduct under both sections, and agreed that a five-day suspension was appropriate. The employee, however, claimed that the rules, taken together, were so vague that they could not be applied consistently with the due process clause. Disagreeing with his assertion that the term “racial . . . epithet” was too vague to provide fair notice that his language was prohibited, the court explained that “basic knowledge of American culture is sufficient to reject this argument,” as the word “n****r” is one of the most reviled in American English. Further, said the court, an employee code of conduct need not be as clear as a criminal law. And while his “real frustration” seemed to be that the policy did not distinguish between using the word in an educational manner from its use as a slur directed toward a student or colleague, the court observed that regardless of what he believed the policy should be, it forbade using such language “in front of students,” rather than merely forbidding using language directed toward students. “His disagreement with the Policy does not render it impermissibly vague,” the court stated.

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