Schools' Ban on N-Word ‘Stupid but Constitutional'

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By Hassan Kanu

June 2 — A white Chicago public school teacher who was suspended for saying “nigger” in “what appears to have been a well-intentioned but poorly executed” educational discussion can't proceed with a First Amendment lawsuit against the school board, the U.S. Court of Appeals for the Seventh Circuit ruled ( Brown v. Chi. Bd. of Educ. , 2016 BL 175193, 7th Cir., No. 15-1857, 6/2/16 ).

The Chicago Board of Education may have been “short-sighted” when it suspended Lincoln 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,” Judge Diane Wood wrote in the June 2 decision.

The decision reaffirms the principle that a public employee's speech isn't protected by the First Amendment when made in the course of the job, even in the case of a teacher expressing “speech related to scholarship or teaching.” The court noted that the U.S. Supreme Court hasn't addressed that question specifically as it involves scholarship, but Wood said that other circuit courts, including the Ninth, Third and Sixth, have also ruled as she did in Brown's case.

Teachable Moment

Brown caught his students passing notes that included music lyrics with the word “nigger” and decided to use the situation as a teachable moment on why the word shouldn't be used. The principal happened to be observing the lesson and Brown was given a five-day suspension.

Brown sued, alleging that his free speech rights were violated because he was improperly impeded while speaking for educational purposes. He also brought a claim asserting that the school board's policies banning any use of a racial slur in front of students are vague and don't clarify what's actually prohibited. Punishing him under those policies is therefore a violation of his rights to due process, Brown argued.

A district court ruled in his favor on the board's dismissal motion, but he then lost on the board's summary judgment motion (188 DLR A-11, 9/27/13).

Holding Would Attract Scalia's Stamp

“Whether a public employee's speech is protected depends on ‘whether the employee spoke as a citizen on a matter of public concern,' ” the Seventh Circuit said.

Brown “himself has emphasized that he was speaking as a teacher—that is to say, as an employee—not as a citizen,” the court said in dismissing the claim.

With regard to the school board's policy on racial slurs, the court said Brown's “only solace is in Justice Scalia's stamp.” It explained that the recently deceased Antonin Scalia once said he “wished all federal judges were given a stamp that read ‘stupid but constitutional.' ”

The court disagreed with Brown's argument that the policies are “impermissibly vague.” A statute or rule generally must provide “fair notice of what is prohibited,” but “basic knowledge of American culture is sufficient to reject this argument,” Wood said.

Judges Diane Sykes and David Hamilton joined the opinion.

William Spielberger and Terence Flynn represented Brown. The Chicago Board of Education attorney represented the board.

To contact the reporter on this story: Hassan Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com