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The Seventh Circuit Court of Appeals recently held that a middle school teacher’s use of the “N” word during class discussion was not protected by the First Amendment. In Brown v. Chicago Board of Education, the Seventh Circuit noted that speech of a public employee does not receive protection unless the speaker is speaking as a citizen regarding a matter of public concern. The court determined that Brown’s speech in the classroom was not protected by the First Amendment because he was not speaking as a citizen; he was speaking pursuant to his official duties as a teacher.

The Chicago Board of Education had a policy forbidding teachers from using racial epithets in front of students, no matter the purpose. Lincoln Brown, a sixth grade teacher, caught students passing notes in class, one of which included music lyrics with the “N” word. Brown chose to use the incident as a teaching opportunity regarding why such words are hurtful and inappropriate. The school principal happened to be observing class that day and Brown was soon suspended according to school policy for his use of the word.

Brown brought suit against the Board in federal court, alleging that the suspension violated his First Amendment rights. The district court granted summary judgment for the Board on Brown’s claim and was affirmed on appeal. The appellate court noted that the core of a teacher’s duty is to speak and present to the class. Brown delivered his lesson in an effort to teach his students about the inappropriateness of such words and, therefore, his speech fell within his official duties and did not implicate the First Amendment (i.e., Brown was speaking as a teacher, not a citizen, when he instructed the student’s on the inappropriateness of the “N” word).

This case reiterates that public employees, when speaking pursuant to their official duties, are not protected by the First Amendment.  However, these cases can be very fact sensitive as it is not always clear whether a public employee’s speech is pursuant to his or her official duties. Accordingly, school officials should exercise caution when disciplining employees for their speech.

Please contact Ellen Rothenberg, Vanessa Clohessy or Chris Hoffmann with employee discipline inquiries.