The Constitutional Permissibility (Under the First Amendment) of Public School District Zero-Tolerance Policies on Racial Epithets

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A Madison, Wisconsin, public school district got a lot of unwanted press last week when it fired a black high school security guard, Marlon Anderson, for using the N-word in essentially a self-defense posture—that is, in telling a student (who also happened to be black) to stop using the racial slur against Anderson himself.  The school district has apparently since reinstated Anderson to his job, which is the sensible and right result.  But even though the injustice against Anderson has been (or will soon be) rectified, we will still benefit from thinking about how—had the district not reconsidered the application of its rigid, no-tolerance policy for use of the N-word—Anderson would have fared had he brought a claim under current First Amendment doctrine.

First, some background:  On October 9 Anderson was called in to assist an assistant principal at the West High School escort a disruptive male student out of the school building.  During the incident, the unruly student began pushing the assistant principal and threatening to hit her.  He also began calling Anderson the N-word.  According to news reports, Anderson used the word himself simply to direct the student to stop hurling it at him: “Every type of N-word you can think of, that’s what he was calling me,” Anderson said. “I said, do not call me that name. I’m not your N-word. Do not call me that.”

In the aftermath of the episode later in the week, the principal of the school reportedly told Anderson that his job was in serious jeopardy.  The principal then sent a letter to parents informing them that, in light of the incident, Anderson would not be returning to the school, pursuant to the district’s zero-tolerance policy for use of the N-word.  According to a letter written by the principal to Anderson, “[a]s you know, our expectation when it comes to racial slurs has been very clear.” She went on: “Regardless of context or circumstance, racial slurs are not acceptable in our schools.”

Students soon rallied behind Anderson and protested his dismissal.  And musical star Cher even tweeted that if Anderson sued to challenge his termination, she would pay his legal costs.

Happily, the district corrected its Kafkaesque application of its well-intentioned anti-N-word policy.  But if the district had not reconsidered, and Anderson had sued (paying his lawyers with Cher’s help or some other way), could he have won? Interestingly enough, probably not, at least under the First Amendment. (I express no opinion on whether he might have had a breach of contract or other kind of employment claim.)

In fact, there is a recent opinion from the U.S. Court of Appeals for the Seventh Circuit (which oversees federal cases filed in Wisconsin as well as Illinois and Indiana) that is fully on point (or nearly so).  In Brown v. Chicago Board of Education (2016), the Seventh Circuit addressed a First Amendment claim filed by a teacher who was fired for using the N-word in class in violation of a Chicago school district’s zero-tolerance policy for use of racial epithets in front of students.  The facts were eerily similar to Anderson’s situation:  Lincoln Brown, a “sixth-grade teacher at Murray Language Academy, a Chicago Public School, caught his students passing a note in class. The note contained, among other things, music lyrics with the offensive” N-word.  “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 principal, Gregory Mason, happened to observe the lesson. Brown was soon suspended.”

In addressing Brown’s First Amendment challenge to the district’s enforcement of its policy, the Seventh Circuit had little trouble concluding that “Brown’s First Amendment claim fails right out of the gate [because] [p]ublic–employee speech is subject to a special set of rules for First Amendment purposes.”  The court went on to explain that “[w]hether a public employee’s speech is constitutionally protected depends [under Supreme Court case law] on ‘whether the employee spoke as a citizen on a matter of public concern.’” In other words, said the court, “[i]f the speaker is not wearing her hat ‘as a citizen,’ or if she is not speaking ‘on a matter of public concern,’ then the First Amendment does not protect her.”

In Brown’s case (and in Anderson’s as well), it is clear that the First Amendment claimant was speaking as a teacher (or security official)—that is, as “an employee—not as a citizen.”  As the Seventh Circuit observed:  a public employee “does not speak as a citizen when he ‘make[s] statements pursuant to [his] official duties.’  In both the Brown case and Mr. Anderson’s case, the employee’s speech was uttered as the employee was discharging his job (in Brown, teaching the students, and in Anderson’s case, maintaining order and possibly also trying to teach the unruly student.)

The Brown court acknowledged that the Supreme Court has not made clear whether its public-employee-speech doctrine applies completely to cases “involving speech related to scholarship or teaching.” But no circuit court has construed any possible exception to apply to K-12, as opposed to higher, education.  And in Anderson’s case, even if he was in fact trying to educate the unruly student as well as fend off the student’s verbal assault, he wouldn’t be able to make use of any academic freedom exception that some judges think might exist in some circumstances, because he was hired as a guard and not a teacher.

Does the result in Brown (and the expected result had Anderson sued) seem just?  Maybe not.  As the Seventh Circuit observed at the outset, drawing on a quip from Justice Antonin Scalia, zero-tolerance policies that take no account of context are senseless:  “Justice Scalia once said that he wished all federal judges were given a stamp that read ‘stupid but constitutional.’ As he was implying, not everything that is undesirable, annoying, or even harmful amounts to a violation of the law, much less a constitutional problem. Today’s case provides another illustration of that fact.”

The big takeaway is that public employees often don’t realize how much their speech (while on the job, and sometimes off of it) can be proscribed and prescribed by their government employers.  Indeed, at public universities like the one where I serve as a professor and a law dean, it is somewhat ironic (but clearly true) that, as far as the First Amendment is concerned, students have greater First Amendment freedoms than the professors who are charged with teaching them about the First Amendment.