Professor Who Used Instructive Racist and Sexist Terms in Classroom Has First Amendment Retaliation Claim
 
November 27, 2001
 

A federal appellate court recently allowed an adjunct professor to pursue his claim that two state college officials retaliated against him for exercising his First Amendment rights in the classroom - the professor had used racist and sexist terms in the context of a discussion on language and communication. The decision is Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001).

In July 1998, Kenneth E. Hardy presented a lecture on language and social constructivism to a group of summer term students at Jefferson Community College (JCC) in Louisville, Kentucky. During the course of the discussion, Hardy asked the class for examples of terms that historically have been used by the dominant social culture to marginalize minorities and other traditionally oppressed groups. The class suggested several words such as "girl," "faggot," "nigger" and "bitch." Hardy repeated these terms over the remainder of the session. Nearly every one of the 22 students in the class participated in the discussion.

One student, however, objected to the in-class use of the terms "nigger" and "bitch," and raised her concerns to Hardy and his superiors. She claimed that Hardy had violated his own policy set forth in the course syllabus prohibiting abusive language in classroom discussions. Hardy met with JCC officials and apologized to the student. Nevertheless, Hardy was not invited back for the fall semester.

Hardy filed suit against JCC and certain college officials, alleging that the defendants' failure to re-hire him constituted unlawful retaliation for his exercise of the First Amendment rights of free speech and academic freedom. Hardy also alleged several state law claims, including defamation, conspiracy, breach of contract and tortious interference with his ongoing business relationship with JCC. The district court dismissed all of Hardy's claims against the college and its officers in their official capacities.

However, the district court refused to dismiss the claims against the JCC officials in their individual capacities. The individual defendants argued that they were entitled to qualified immunity because Hardy had no constitutional right to use racist and sexist terms in the classroom. The district court disagreed, concluding that Hardy had a clearly established First Amendment right to speak on matters of public concern and that his in-class use of the "N" word and the "B" word clearly touched on matters of public concern.

On appeal, the Sixth Circuit reviewed two issues. First, the court found that Hardy's use of the offensive terms was instructive, rather than gratuitous, and that it was clearly germane to the academic classroom discussion on social deconstructivism and the power of language. Because the in-class speech related to matters of "overwhelming public concern" - conflicts of race, gender and power in society - Hardy's use of the terms was entitled to First Amendment protection. Moreover, JCC had no absolute right to censor Hardy's speech based on an "undifferentiated fear" that the discussion would disrupt the college environment or make students uncomfortable, particularly where there was no evidence that Hardy's lecture had impeded his teaching or interfered with the school's operations.

Second, the court concluded that it was not objectively reasonable for JCC officials to believe that retaliating against Hardy, based on his in-class speech, was lawful. Noting the "overwhelming precedent" establishing that freedom of expression in the classroom is a core First Amendment right, the court held that reasonable school officials should have known that Hardy's speech - which was germane to the subject matter of the class and advanced an important academic message - was entitled to constitutional protection. Accordingly, the officials were not entitled to rely on the qualified immunity defense.

The Sixth Circuit's decision raises several important considerations for educators. First, it highlights the difficulty all schools face in balancing academic freedom with the need to promote and maintain an inclusive environment in which all students feel comfortable. Second, it underscores the need to pay attention to the rights and interests of non-tenured and adjunct professors. Despite the absence of tenure or even an employment contract guaranteeing Hardy's future at JCC, the court allowed Hardy to maintain a retaliation claim based on the school's decision not to re-hire him.

Finally, the decision serves as an important reminder to public colleges and universities (and their leadership) to keep abreast of current legal standards. The court rejected the individual defendants' qualified immunity defenses on the basis that Hardy's constitutional right to speak in the classroom upon a matter of public concern was "clearly established." Had the school's officials been more aware of the constitutional standards, they might well have avoided Hardy's lawsuit.

For more information, contact Maria Whitehorn Votsch at 1-888-688-8500 or via e-mail Maria Whitehorn Votsch