Wednesday, June 5, 2019

5th Circuit - Profane University Professor Not Entitled to 1st Amendment Protection

If anything, teachers, especially university professors, enjoy significant protection of speech in the classroom in order to protect freedom of expression in ideas. As the 5th Circuit Court of Appeals said recently, though, that “students, teachers, and professors are not permitted to say anything and everything simply because the words are uttered in the classroom context.”

In the case of Buchanan v. Alexander, 919 F.3d 847, plaintiff was an LSU professor who spent at least part of her time in the local public schools training teachers. The University conducted an investigation of her behavior after it began receiving complaints that plaintiff was using “extreme” profanity during the trainings, speaking of her sexual activities and asking students (who were teachers, not children) about their sexual activities.

After investigating the complaints, plaintiff was discharged from her job for violating the University’s sexual harassment policy and creating a hostile classroom environment. She sued the University, for among other things, violation of her 1st Amendment protection of free speech.

Few settings provide greater protection for the freedom of discussion than a classroom and classroom speech is generally protected by the 1st Amendment. Nevertheless, when an employee, particularly a teacher like plaintiff here, assert an adverse employment action in violation of those rights, they are still held to the same tests as other public employees. To establish a § 1983 claim for violation of the First Amendment right to free speech plaintiff had to show that (1) she was disciplined or fired for speech that was a matter of public concern, and (2) her interest in the speech outweighed the university’s interest in regulating  the speech.

The court held that in the context of a college classroom, speech that does not have an academic purpose does not address a public concern. Profanity and discussion of students’ or the plaintiff’s sexual activities have no academic purpose, therefore the speech was not protected, and her discharge for that behavior was not unlawful.

Public employers should remember that the analysis of whether public employee speech is protected is always dependent on the particular facts of the situation. Here, plaintiff could show no academic purpose for her topics of discussion, which lent more clarity to the analysis. Often the facts are not quite so clear and employers must carefully consider whether the speech in question raises public concern and whether that concern outweighs the employer’s interest in efficiency, safety or the like.