Lincoln Brown v. Chicago Board of Education
Filing
Filed opinion of the court by Chief Judge Wood. AFFIRMED. Diane P. Wood, Chief Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6755052-1] [6755052] [15-1857]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1857
LINCOLN BROWN,
Plaintiff‐Appellant,
v.
CHICAGO BOARD OF EDUCATION,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 1112 — Manish S. Shah, Judge.
____________________
ARGUED FEBRUARY 23, 2016 — DECIDED JUNE 2, 2016
____________________
Before WOOD, Chief Judge, and SYKES and HAMILTON, Cir‐
cuit Judges.
WOOD, Chief Judge. Justice Scalia once said that he wished
all federal judges were given a stamp that read “stupid but
constitutional.” See Jennifer Senior, In Conversation: Antonin
Scalia, NEW YORK MAGAZINE, Oct. 6, 2013. As he was implying,
not everything that is undesirable, annoying, or even harmful
amounts to a violation of the law, much less a constitutional
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problem. Today’s case provides another illustration of that
fact.
The Chicago Board of Education has a written policy that
forbids teachers from using racial epithets in front of students,
no matter what the purpose. 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
word “nigger.” 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
and brought this suit under 42 U.S.C. § 1983 against the Board
and various school personnel.
The district court dismissed a number of counts under
Federal Rule of Civil Procedure 12(b)(6), and Brown has not
pursued them further. But two of his theories of relief pro‐
ceeded to summary judgment: that his suspension violated
his First Amendment rights, and that the school’s policy was
so vague that his suspension violated the substantive due pro‐
cess component of the Fourteenth Amendment. The district
court granted summary judgment to the Board on both.
Brown appeals. Because Brown’s suspension did not violate
his constitutional rights, we affirm.
I
Brown’s First Amendment claim fails right out of the gate.
Public‐employee speech is subject to a special set of rules for
First Amendment purposes. Whether a public employee’s
speech is constitutionally protected depends on “whether the
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employee spoke as a citizen on a matter of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); see Pickering v. Bd.
of Educ., 391 U.S. 563 (1968). If 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. See, e.g., Garcetti, 547 U.S. at 421; Connick v. Myers, 461 U.S.
138 (1983).
In the case before us, Brown himself has emphasized that
he was speaking as a teacher—that is to say, as an employee—
not as a citizen. An employee does not speak as a citizen when
he “make[s] statements pursuant to [his] official duties.” Gar‐
cetti, 547 U.S. at 421. The question remains whether the Gar‐
cetti rule applies in the same way to “a case involving speech
related to scholarship or teaching.” Id. at 425. The Supreme
Court had no need to address that issue, and so left it for an‐
other day.
This is not our first opportunity, however, in which to con‐
front that question. See Mayer v. Monroe Cnty. Cmty. Sch. Corp.,
474 F.3d 477 (7th Cir. 2007). In Mayer, we concluded that a
teacher’s in‐classroom speech is not the speech of a “citizen”
for First Amendment purposes. Id. at 479. The core of the
teacher’s job is to speak in the classroom on the subjects she is
expected to teach. This meant, we thought, that in‐classroom
instruction necessarily constitutes “statements pursuant to
[the teacher’s] official duties.” Id. (internal quotation marks
omitted) (quoting Garcetti, 547 U.S. at 418).
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. See Mayer, 474 F.3d at 479 (expressing anti‐war views
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during event is unprotected employee speech); Fairley v. An‐
drews, 578 F.3d 518, 523 (7th Cir. 2009) (posting improper no‐
tices on work bulletin board would be unprotected employee
speech); Piggee v. Carl Sandburg Coll., 464 F.3d 667, 670–71 (7th
Cir. 2006) (expressing homophobic views at school outside of
class is unprotected employee speech). Moreover, maintain‐
ing classroom order is one of Brown’s most basic duties as a
teacher. See Weintraub v. New York Bd. of Educ., 593 F.3d 196,
198 (2d Cir. 2010) (“core duties” of teachers include “main‐
taining class discipline”). To the extent that Brown’s discus‐
sion of racial slurs was an attempt to quell student misbehav‐
ior, it was still pursuant to his official duties.
Brown argues that we should ignore Mayer and instead
follow the Ninth Circuit by understanding the Supreme
Court’s reservation as a hint that Garcetti should not apply “in
the same manner to a case involving speech related to schol‐
arship or teaching.” Garcetti, 547 U.S. at 425; see Demers v. Aus‐
tin, 746 F.3d 402, 411 (9th Cir. 2014). But Demers addressed
speech in a university setting, not a primary or secondary
school. It relied on the long‐standing recognition that aca‐
demic freedom in a university is “a special concern of the First
Amendment” because of the university’s unique role in par‐
ticipating in and fostering a marketplace of ideas. See Demers,
746 F.3d at 411 (internal quotation marks omitted) (quoting
Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589,
603 (1967)). (Demers also did not comment on the extent to
which, at the university level, the institution may have sepa‐
rate interests from those of its faculty.) In fact, in the primary
and secondary school context, the Ninth Circuit follows
Mayer’s approach. See Johnson v. Poway Unified Sch. Dist., 658
F.3d 954, 962–63 (9th Cir. 2011) (holding in‐classroom instruc‐
tion is pursuant to teacher’s official duties and unprotected
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employee speech). So do the Third and Sixth Circuits. Evans‐
Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 624
F.3d 332 (6th Cir. 2010); Edwards v. Cal. Univ. of Pa., 156 F.3d
488, 491 (3d Cir. 1998) (Alito, J.) (pre‐Garcetti). Only the Fourth
Circuit has adopted the position that Brown advocates, and it
did so without analysis. Lee v. York Cnty. Sch. Div., 484 F.3d
687, 694 n.11 (4th Cir. 2007). We see no reason to depart here
from our decision in Mayer. Brown made his comments as a
teacher, not a citizen, and so his suspension does not implicate
his First Amendment rights.
II
We must explain the facts in a little more detail to set the
stage for Brown’s due process claim. Following the incident in
question, Brown received a notice of a pre‐discipline hearing.
This notice cited him for violating Sections 3‐3 and 3‐17 of the
Employee Discipline and Due Process Policy. Section 3‐3 of
the Policy prohibits “[u]sing verbally abusive language to or
in front of students.” Section 3‐17 prohibits “[v]iolating
School rules, Board rules, policies or procedures that result in
behaviors that disrupt the orderly educational process in the
classroom, in the school, and may occur on or off the school
grounds or assigned work location.” Because Section 3‐17 in‐
corporates violations of any other school rules, it sweeps in
Section 4‐2, a rule that prohibits “using racial, cultural, ethnic,
or religious epithets, or threatening language.”
After the notice of preliminary hearing was issued, Princi‐
pal Mason dropped the charges based on Section 3‐17. He sus‐
pended Brown for five days based solely on the Section 3‐3
charge of use of verbally abusive language. Brown appealed
this decision to the Board. The Board reinstated the general
charge under Section 3‐17 (a step it was authorized to take),
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entered a finding of misconduct under both Sections 3‐3 and
3‐17, and agreed that a five‐day suspension was appropriate.
Brown acknowledges that he had actual knowledge of the
Policy prior to this incident, and he has not raised any com‐
plaint about procedural due process in this court. He asserts
only that these rules, taken together, are so vague that they
cannot be applied consistently with the Due Process Clause.
A statute, or in this case, a policy, is impermissibly vague
if it “fails to provide a person of ordinary intelligence fair no‐
tice of what is prohibited.” FCC v. Fox Television Stations, Inc.,
132 S. Ct. 2307, 2317 (2012) (internal quotation marks omitted)
(quoting United States v. Williams, 553 U.S. 285, 304 (2008)).
Brown presents two arguments in support of his vagueness
theory. First, he says that the term “racial … epithet” in Sec‐
tion 4‐2 is too vague to provide fair notice that his language
was prohibited. He would prefer that the Board provide a list
of banned words. Basic knowledge of American culture is suf‐
ficient to reject this argument. The word “nigger” is one of the
most reviled in American English. It is the archetypal racial
epithet. Moreover, Brown’s actions indicate that he knew this
to be the case—why else would he interrupt his planned
grammar lesson to lead a discussion on why the word is in‐
appropriate?
The law buttresses this commonsensical observation. A
statute need not define every term to survive a vagueness
challenge. See United States Civil Serv. Comm’n v. Nat’l Ass’n of
Letter Carriers, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413
U.S. 601 (1973); see also United States v. Lanier, 520 U.S. 259,
271 (1997). Moreover, an employee code of conduct need not
be as clear as a criminal law. Greer v. Amesqua, 212 F.3d 358,
369 (7th Cir. 2000) (employee discipline code); see also Bethel
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Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (student
discipline code). The policy gave adequate warning that
Brown’s use of that word was prohibited.
Brown’s real frustration seems to be that the policy does
not distinguish between using the word in an educational
manner from its use as a slur directed toward a student or col‐
league. While we understand his frustration, his only solace
is in Justice Scalia’s stamp. Regardless of what he believes the
Policy should be, the Policy in force forbids using such lan‐
guage “in front of students,” rather than merely forbidding
using language directed toward students. His disagreement
with the Policy does not render it impermissibly vague.
Second, Brown argues that the Board had a past policy of
non‐enforcement when the word was used educationally. He
contends that this means he lacked sufficient notice that the
Board would enforce the policy against him in this instance.
Brown points to several instances where students heard the
word with the school’s tacit approval: he taught Adventures of
Huckleberry Finn at another Chicago public school, his current
school organized a field trip to see Red Tails, a movie about
African‐American pilots in World War II, and the Parent‐
Teacher Organization organized a showing of 42, a movie
about Jackie Robinson. The book and the two movies all use
the word in question (and do so repeatedly). Furthermore,
Principal Mason admits that he might have used the word
when asking students about what occurred in Brown’s class‐
room—more indication that the Policy was not as strict as the
Board now claims it is.
The Supreme Court accepted an argument similar to
Brown’s in Fox Television Stations, Inc. In that case, the FCC
had a long‐standing written policy that it would not fine TV
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networks for “isolated or fleeting” expletives or nudity.
132 S. Ct. at 2313. Then the Commission abruptly changed
course and, without announcing its new policy, fined two net‐
works for brief nudity and swearing. Id. at 2317. Because the
Commission had not given advance notice of this change, the
Court held that it “failed to give” the networks “fair notice”
of the impermissible conduct. Id. at 2320.
But Fox does not save Brown’s case. Unlike the FCC, the
Board had no formal policy of not enforcing its Policy in cer‐
tain circumstances. A handful of instances of past non‐en‐
forcement is a far cry from the FCC’s written, formal policy of
non‐enforcement in Fox, and is insufficient to render the Pol‐
icy so vague that an ordinary person would not know what it
prohibits. See Libertarian Party of Ohio v. Husted, 751 F.3d 403,
424 (6th Cir. 2014) (holding statute not void for vagueness
where plaintiff “does not point to any non‐enforcement policy
… from which [this enforcement action] marks an abrupt
change,” unlike in Fox). Brown’s surprise, along with a few
episodes of non‐enforcement, does not support a substantive
due process claim.
III
Brown is indignant that he was suspended for using a ra‐
cial slur while attempting to teach his students why such lan‐
guage is inappropriate. His frustration is understandable, but
it is not legally actionable. This is really a First Amendment
case, which gains nothing from the addition of the substantive
due process argument. And from a First Amendment stand‐
point, Garcetti dooms his position. The Board may have acted
in a short‐sighted way when it suspended him for his effort to
educate the students about a sensitive and socially important
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issue, but it did not trample on his First Amendment rights.
We therefore AFFIRM the judgment of the district court.
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