I still remember my fourth grade teacher, Mrs. Ross, standing in front of me, hand outstretched, a stern expression on her face. Becky had passed me a note and I hadn’t opened it yet, and wasn’t even sure what it said, but there I was, holding the incriminating evidence. I was terrified.
I bet this is how one student at Chicago’s Murray Language Academy, felt last October, when he was caught holding a passed note in class. The teacher confiscated the note and read it. As it turned out, the note included rap lyrics with the “N-word.”
The teacher, Lincoln Brown, who is white, felt that this was a “teachable moment” to discuss racism and the implications of using such words with his predominately black class. Mr. Brown grew up in a home active in the civil rights movement; his parents even named their son after their favorite president.
During the ensuing discussion with his sixth grade class, Mr. Brown discussed the history of the N-word, and discussed its use in Mark Twain’s “Huckleberry Finn.” The school’s principal, who is black, happened to stop in that day, and heard some of the lesson.
Mr. Brown thought nothing more of the matter. But two weeks later, he received a “Notice of Pre-Discipline Hearing” from the principal on behalf of the school board accusing him of violating school policy for “using verbally abusive language to or in front of student.” Hearings and more notices followed, including a “Notice of Disciplinary Action” that informed Mr. Brown he would be suspended without pay for five days.
Under the “Suggestion(s) for Improvement” section of the notice, the principal wrote, “Do not use the word ‘N—–’ with students at Murray at any time; whether a ‘teachable moment’ or not; the word is not appropriate for this age group.”
Mr. Brown appealed the disciplinary action and a hearing was conducted with the school district’s Office of Employee Relations in early December, but the appeal was denied.
In January, Mr. Brown, who has been teaching for more than 25 years and who had never been disciplined before, sued the Chicago Public School’s Board of Education, its CEO, and the principal of the school for violating his first and fifth amendment rights, alleging that he was punished for talking about a matter of public concern, and that his due process rights were violated in disciplining him. He also claims that the school was behaving inconsistently; he cited to use of the word by the principal himself when discussing the incident.
The media reported that Mr. Brown is suing the school district and presented his account of what occurred, but didn’t analyze the matter from a legal standpoint. LASIS will.
In 2007, an Indiana public school teacher sued on first amendment grounds when her contract wasn’t renewed after a current events class discussion in which she expressed her personal opinions about the Iraq War. The court held that even though this was a matter of public importance, the first amendment didn’t provide support to primary and secondary teachers to discuss positions or matters that deviate from the established curriculum..
This decision was in line with the Supreme Court’s reasoning. In the 2006 case Garcetti v. Ceballos, the 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.”
So Mr. Brown’s first amendment arguments won’t help him.
He also claims that the discipline he received violated his due process rights because there was no written or verbal rule against what he did presented to him by the school district. To obtain relief under the fifth amendment, which states that, “No person shall be…deprived of life, liberty, or property, without due process of law,” a person in Mr. Brown’s position must show that he was harmed without the benefit of notice of what he did wrong or a hearing to decide the matter.
In a 2004 Illinois District Court case, a kindergarten teacher spoke publicly and criticized both the kindergarten program and the renewal of the school principal’s contract. She then received a “Warning Resolution” for insubordination and other violations, including not finishing tasks and not assigning grades to students, and after that, her contract was not renewed. She sued, alleging that the school had violated her due process rights, but the court held that the warning she received had amply satisfied those rights.
Mr. Brown’s due process rights appear to have been equally satisfied.
We believe he meant well. But in using class time to talk about the history of a word that the media only refers to by its first letter, he stepped outside the official curriculum. At least one student was reportedly uncomfortable with the discussion. And he was given notice and the opportunity for a hearing.
The law is not on this veteran teacher’s side.
This blog originally appeared in Legal as She is Spoke, a project of the Law and Journalism track at New York Law School, on March 17, 2012. Reprinted with permission.
About the Author: Jaclyn Tyndorf is a (2L) majored in Broadcast Journalism at Syracuse University. She is active at New York Law School, and is a member of the Media Law & Policy Center, the Institute for Information Law and Policy, and the Program in Law & Journalism. Jaclyn spends her free time exploring the neighborhoods of New York City and enjoys attending New York Jets games.
