Diane P. Wood
The late U.S. Supreme Court Justice Antonin G. Scalia once remarked that federal judges should have a stamp reading “stupid but constitutional.”
The truth of that statement, the 7th U.S. Circuit Court of Appeals wrote Thursday, is illustrated by the case of a sixth-grade teacher suspended for using the N-word in “a well-intentioned but poorly executed” discussion about how words can hurt.
The court held Lincoln Brown does not have a case against the Chicago Board of Education for a violation of his constitutional right to free speech.
A panel of the court conceded Brown began the discussion because he had caught his students passing a note containing music lyrics that included the epithet.
But Brown’s use of the term violated a written policy barring teachers from using racial slurs in front of students, no matter the purpose, the panel wrote.
Citing Garcetti v. Ceballos, 547 U.S. 410 (2006), it also wrote that government employees are protected by the First Amendment only when they speak as private citizens on matters of public concern.
A public school teacher is speaking as a government employee — not a private citizen — when he or she speaks in the classroom, the panel wrote, citing Mayer v. Monroe County Community School Corp., 474 F.3d 477 (7th Cir. 2007).
And Brown himself, it wrote, has acknowledged he was speaking in his capacity as a public school teacher when he conducted the discussion.
“To the extent that Brown’s discussion of racial slurs was an attempt to quell student misbehavior, it was still pursuant to his official duties,” Chief Judge Diane P. Wood wrote for the panel.
However, she continued, that doesn’t mean the board acted wisely in taking action against Brown.
“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,” Wood wrote, “but it did not trample on his First Amendment rights.”
The panel upheld U.S. District Judge Manish S. Shah’s decision to grant summary judgment in favor of the school board in a lawsuit filed by Brown.
Terence E. Flynn argued the case before the 7th Circuit on behalf of Brown.
“We’re very disappointed in the result,” Flynn said.
He said his client is considering the possibility of seeking a rehearing before the appeals court.
Lee Ann Lowder argued the case for the board of education.
A spokesperson for the board could not be reached for comment.
After observing the lesson on hurtful words, Principal Gregory Mason of Murray Language Academy in Hyde Park suspended Brown for five days.
Mason found Brown had violated Section 3-3 of the Employee Discipline and Due Process Policy, which bars the use of verbally abusive language in front of students.
Brown appealed to the board, which reinstated a charge of violation Section 3-17, which bars violations of school rules that disrupt “the orderly educational process.”
Section 3-17 brings in all other rules, including one that prohibits using racial, cultural, ethnic or religious epithets or threatening language.
The board found Brown had violated both Sections 3-3 and 3-17 and upheld the suspension.
In his suit, Brown accused the board of violating his right to due process as well as his right to free speech.
The 7th Circuit panel held Brown also cannot prevail on his due process claim.
The panel rejected the argument that the term “racial epithet” is unconstitutionally vague.
The word in question “is one of the most reviled in the English language” and “the archetypical racial epithet,” Wood wrote.
“Moreover,” she continued, “Brown’s actions indicate that he knew this to be the case — why else would he interrupt his planned grammar lesson to lead a discussion on why the word is inappropriate?”
Joining the opinion were Judges Diane S. Sykes and David F. Hamilton. Lincoln Brown v. Chicago Board of Education, No. 15-1857.