Racial-Slur Rule: ‘Stupid but Constitutional’

CHICAGO (CN) — A rule forbidding Chicago teachers from using racial slurs, even to educate students about why such words are hurtful, is constitutional, the Seventh Circuit ruled.

"Justice Scalia once said that he wished all federal judges were given a stamp that read 'stupid but constitutional,'" the federal appeals court's Thursday decision begins.

"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."

Chief Judge Diane Wood wrote the decision for the three-judge panel in looking at the case of sixth-grade teacher Lincoln Brown.

The Murray Language Academy, a Chicago public school in a predominantly black neighborhood, suspended Brown, who is white man, over the way he handled a couple of students passing notes in his class.

The note contained the lyrics to a song, and included the word "nigger," and Brown took this as an opportunity to discuss the offensive word.

Principal Gregory Mason happened to be sitting in on what Wood said had been "a well-intentioned but poorly executed discussion of why such words are hurtful and must not be used."

Brown received a five-day unpaid suspension based on the Chicago Board of Education's written policy that forbids teachers from using racial slurs in front of students, no matter what the purpose.

The teacher challenged the policy as a restriction of his First Amendment rights, but a federal judge ruled for the school board, and the Seventh Circuit affirmed Thursday.

Saying "Brown's First Amendment claim fails right out of the gate," Wood noted that public employees' speech is more strictly regulated than a private citizen's speech because they speak as an employee of the government.

Unless the employee can be understood as speaking as a private citizen on a matter of public concern, the First Amendment does not protect their speech.

"Here, Brown gave his impromptu lesson on racial epithets in the course of his regular grammar lesson to a sixth grade class. His speech was therefore pursuant to his official duties. That he deviated from the official curriculum does not change this fact," Wood said.

Brown believes that he should be allowed to use the n-word in an educational context, but Wood said his disagreement with the policy does not make it unconstitutional.

"While we understand his frustration, his only solace is in Justice Scalia's stamp," Wood said. "Regardless of what he believes the policy should be, the policy in force forbids using such language 'in front of students,' rather than merely forbidding using language directed toward students." (Emphasis in original.)

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