Teacher’s suit over discipline for “N-word” use in the classroom survives motion to dismiss

Brown v. Chicago Bd. of Educ., No. 12-01112 (N.D. Ill. Sept. 25, 2013)

Abstract: A federal district court in Illinois has ruled that a middle school teacher challenging the discipline he received for using the “N-word” in the classroom has stated a valid First Amendment claim.  The court found that even though the teacher’s speech was made pursuant to his teaching duties, there may a “classroom instruction” exception to the Garcetti v. Ceballos,  547 U.S. 410 (2005), holding that “the government may regulate public employee speech made pursuant to official duties without triggering any First Amendment scrutiny.”  Without discovery, the court was not convinced that the teacher was on adequate notice that his actions violated school board policy. The court also kept open a vagueness-as-applied challenge to the district’s policies.

The court held that the middle school principal was entitled to qualified immunity in his individual capacity from the First Amendment claim, because Brown’s right was not clearly established at the time, and that claims against two school defendants in their official capacity must be dismissed because they duplicated claims filed against their employer, the school district.

Facts/Issues: Lincoln Brown is employed by the Chicago Board of Education (CBOE) as a teacher at Murray Language Academy (MLA).  During a grammar exercise in his sixth grade class, Brown confiscated a note students had been passing around.  The note containing offensive lyrics from a rap song, and included the  “N-word.”  Brown decided to use it as a teachable moment to demonstrate the bullying nature of the words.  He read aloud from part of the note.  He then explained to the students that, although he listened to rap music, he did not listen to rap that contained offensive and inappropriate language, including racial stereotypes and the degradation of women.

Brown decided to defuse the situation by explaining the controversial use of the “N” word in rap music and society at large.  He explained that the “N-word” was distasteful and historically offensive to African Americans.  MLA Principal Gregory Mason, who had stopped by the class, witnessed parts of the classroom discussion.

Brown was suspended without pay for five days for his use of the “N-word” in class.  The school district relied on two policies.  One prohibited the use of “verbally abusive language to or in front of [a] student”  and the other prohibited teachers from “[v]iolating School rules, Board rules, policies or procedures that result in behaviors that disrupt the orderly educational process in the classroom…[or making] Any cruel, immoral, negligent, or criminal conduct or communication to a student, that caused psychological or physical harm or injury to a student.”

After his appeal to the Director of Employee Relations was denied, Brown filed suit in federal district court against CBOE, CBOE’s CEO Barbara Byrd-Bennett, and Mason.  Brown alleged the defendants had violated his First Amendment free speech rights and his Fourteenth Amendment due process rights.  The defendants filed a motion to dismiss all of Brown’s claims on the ground he had failed to state a claim on which relief can be granted.

Ruling/Rationale: The district court granted the defendants’ motion in part and denied it in part.

The controlling law comes from Garcetti v. Ceballos,  547 U.S. 410 (2005). Garcetti supplanted Pickering v. Bd. of Educ., 391 U.S. 563 (1968), when the governmental employee’s speech is made pursuant to his job duties.  Prior to Garcetti, all public employee speech was analyzed under Pickering’s balancing test (analyzing whether the employee’s interest as a citizen in commenting on a matter of public concern is outweighed by the interest of the government employer in promoting effective and efficient public service). Under Garcetti, however, the Pickering test is not applicable when “the public employee’s speech is made pursuant to his or her official duties, that is, ‘if the employee is simply performing his or her job duties.'”  (quoting Garcetti).  In that circumstance, no balancing occurs and the governmental employer is free to regulate the employee’s speech without any First Amendment concern because, as explained in Garcetti Id. at 422-23:

Employers have heightened interests in controlling speech made by an employee in his or her professional capacity.  Official communications have official consequences, creating a need for substantive consistency and clarity.  Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.

The court found it clear that Brown’s discussion of the “n-word” was made pursuant to his employment duties as a teacher.  Therefore, Garcetti is applicable.  The Garcetti opinion, however, contains dicta that its rule may not apply to “classroom instruction.”  The Supreme Court has not ruled further on this issue, nor has it ever held that teachers below the university level have First Amendment protections.

The court noted that for the most part K-12 teachers have been unsuccessful in asserting a First Amendment challenge to school district regulation of their classroom speech.  However, the district court emphasized that in each case the teacher was expressly on notice through a policy or rule prohibiting their speech.  The court was concerned that the school district’s policies did not adequately put Brown on notice that his use the of “N-word” (in an effort to teach about the power of language) was prohibited.

The district court stressed that Brown’s success on the motion to dismiss does mean he would ultimately succeed on the free speech claim because “facts might be unearthed in discovery that show this ban on the word, in the setting that Brown used it in, has been an already-set policy.”

In similar fashion, the court left open a vagueness-as-applied challenge to the district’s policies.

The court dismissed the claims against Byrd-Bennett and Mason in their official capacities because they were redundant to Brown’s claim against CBOE, their employer.  The court also held that Principal Mason was entitled to qualified immunity because Brown’s constitutional rights were not clearly established at the time of their alleged violation.

Brown v. Chicago Bd. of Educ., No. 12-01112 (N.D. Ill. Sept. 25, 2013)

[Editor’s Note: In October 2013, Legal Clips summarized a decision by a U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP) three-judge panel in Demers v. Austin holding that Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state.  Instead, it held such speech/expression by publicly employed teachers is governed by Pickering.]

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