Brown v. Chicago Bd. of Educ: Public Employee Has No First Amendment Protection for Racial Epithet
In Brown v. Chicago Bd. of Educ., 824 F.3d 713 (7th Cir. 2016), the 7th Circuit held that a public school teacher, who was suspended for using a racial epithet in front of his students, was not afforded First Amendment protection because his speech was made pursuant to his employment duties.
Brown involved a sixth grade teacher who, after catching his students passing a note in class containing music lyrics with a racial slur, engaged the class in “a well-intentioned but poorly executed discussion of why such words are hurtful and must not be used." Brown, 824 F.3d at 714. The school board suspended the teacher under its "written policy that forbids teachers from using racial epithets in front of students, no matter what the purpose." Id. at 714.
In finding that the teacher’s suspension did not implicate his First Amendment rights, the 7th Circuit relied on the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). Garcetti involved a deputy district attorney who was disciplined for writing an internal memorandum saying that he believed police had made serious misrepresentations in seeking a search warrant. Garcetti, 547 U.S. at 414. In denying the public employee’s claim, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421. According to the Supreme Court, the district attorney wrote the internal memo pursuant to his official duties. Id.
Prior to Garcetti, all public employee speech was analyzed under a test established by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983). Under the Pickering-Connick test, the threshold inquiry was whether the speech at issue concerned matters of public concern. If the answer was no, then the public employee has no First Amendment cause of action. If the answer was yes, then the court must weigh the public employee’s right to speak on public matters against the government’s interest in the efficient administration of government services.
The Garcetti ruling added an additional element to the Pickering-Connick test. It created a new threshold inquiry into whether the public employee speech is pursuant to his or her employment duties. If a court determines that a public employee’s speech is not related to his or her employment duties then the speech qualifies as citizen speech. The next inquiry is whether the expression concerned a matter of public concern. If the answer is yes, then courts must balance the employee’s speech interest against the government’s interest in efficiency.
In Brown, the public employee’s First Amendment claim was doomed because the public employee emphasized that when he used the racial slur he was speaking as a teacher, not a citizen. Brown, 824 F.3d at 715. Therefore, Garcetti was applicable. Id.
The last issue addressed by the 7th Circuit in Brown was whether the Garcetti rule applies in the same way to “a case involving speech related to scholarship or teaching.” Id. In the Garcetti opinion, there is dicta suggesting that its rule may not apply to “classroom instruction.” Garcetti, 547 U.S. at 425. However, the Supreme Court declined to rule on the issue. In Brown, the 7th Circuit followed the majority of circuit courts and declined to depart from its decision in Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 479 (7th Cir. 2007). In Mayer, the 7th Circuit concluded that an elementary school teacher’s in-classroom speech is not speech of a citizen for First Amendment purposes. Mayer, 474 F.3d at 480. The Brown court left undecided the issue of whether the Garcetti rule applies to classroom instruction in the university sitting where courts have a “long-standing recognition that academic freedom … is ‘a special concern of the First Amendment’ ….” Brown, 824 F.3d at 716.
Brown is an important reminder that although public employees do not shed their free speech rights when they enter public employment, public employers retain significant authority to control speech made by an employee pursuant to his or her official duties.