Argued February 23, 2016
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 1112 Manish S. Shah, Judge.
Before Wood, Chief Judge, and Sykes and Hamilton, Circuit 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 problem. To day '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 proceeded 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 process 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.
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 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." Garcetti, 547 U.S. at 421. The question remains whether the Garcetti 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 another day.
This is not our first opportunity, however, in which to confront 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 during event is unprotected employee speech); Fairley v. Andrews, 578 F.3d 518, 523 (7th Cir. 2009) (posting improper notices 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, maintaining classroom order is one of Brown's most basic duties as a teacher. See Weintraub v. New Yo r k Bd. of Educ., 593 F.3d 196, 198 (2d Cir. 2010) ("core duties" of teachers include "maintaining class discipline"). To the extent that Brown's discussion of racial slurs was an attempt to quell student misbehavior, 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 scholarship or teaching." Garcetti, 547 U.S. at 425; see Demers v. Austin, 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 academic freedom in a university is "a special concern of the First Amendment" because of the university's unique role in participating 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 separate 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 instruction is pursuant to teacher's official duties and unprotected employee speech). So do the Third and Sixth Circuits. EvansMarshall 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.) ...