Teacher's In-Class Use of Racial Epithet Not Protected By First Amendment

The United States Court of Appeals for the Seventh Circuit recently found that a teacher's in-class use of a racial epithet was not protected by the First Amendment.  

The Chicago Board of Education has a written policy that forbids teachers from using racial epithets in front of students, no matter what the purpose. Lincoln Brown, a sixth grade teacher at a Chicago Public School, caught his students passing a note in class. The note contained music lyrics with the offensive word “ni----.” Brown used this episode as an opportunity to conduct what appears to have been a "well‐intentioned but poorly executed discussion" of why such words are hurtful and must not be used. The school's principal observed the lesson. Brown was suspended and brought a lawsuit against the Board and various school personnel.

The Court first noted that Brown’s First Amendment claim "fails right out of the gate" because public employee speech is subject to a special set of rules under the First Amendment. Whether a public employee’s speech is constitutionally protected depends on “whether the employee spoke as a citizen on a matter of public concern.” If the speaker is not wearing his hat “as a citizen,” or if he is not speaking “on a matter of public concern,” then the First Amendment does not protect him.

In this case, Brown emphasized that he was speaking as a teacher—that is to say, as an employee— not as a citizen. An employee does not speak as a citizen when he “make[s] statements pursuant to [his] official duties.” The Court found that Brown's in‐classroom speech was not the speech of a “citizen” for First Amendment purposes. "The core of the teacher’s job is to speak in the classroom on the subjects he is expected to teach . . . and in‐classroom instruction necessarily constitutes statements pursuant to [the teacher’s] official duties.”  

"Brown gave his impromptu lesson on racial epithets in the course of his regular grammar lesson to a sixth grade class. His speech was therefore pursuant to his official duties. That he deviated from the official curriculum does not change this fact." 

The Court concluded its opinion by stating "the Board may have acted in a short‐sighted way when it suspended [Brown] for his effort to educate the students about a sensitive and socially important issue, but it did not trample on his First Amendment rights."

(NOTE: Swier Law Firm's presentation at the 2016 Associated School Boards of South Dakota/School Administrators of South Dakota Joint Convention, Facebook Firings: Social Media & Free Speech for School Employees, will examine how the courts have applied First Amendment principles to school district employees).

Scott Swier
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