“Stupid but constitutional.”

Lincoln Brown was a 6th grade teacher in Chicago. One day during class, Mr. Brown intercepted a note the kids were passing around. The note included lyrics from some rap songs that included racist and violent words.  Among other things, the lyrics referenced what we, in polite company, call “the N-word.”  Mr. Brown decided to use this as a teachable moment, explaining to his classroom of mostly African-American children why the N-word was considered offensive.

In the back of the room sat the principal, doing a classroom observation.  Was he proud of his teacher for taking advantage of this situation to teach an important life lesson?  No.  In fact, he recommended a five-day unpaid suspension for uttering the N-word in the classroom.  District policy prohibited the use of any sort of racial slur in the school, but you would think that context would be taken into account.

The Chicago school board upheld the man’s suspension and the man sued, alleging that this was a violation of his First Amendment rights of free speech. He lost.  When in the classroom, teachers’ rights of free speech are about the size of a pinhead.  He might have had better luck if he had alleged that the principal and the Chicago school board had engaged in rank stupidity.  But that’s not a theory that the lawyers would call “actionable.”  In fact, the opinion of the 7th Circuit, affirming the man’s suspension, begins with this:

Justice Scalia once said that he wished all federal judges were given a stamp that read “stupid but constitutional.”

I was watching the Ken Burns documentary about Jackie Robinson recently.  You should watch it.  Spoiler alert: it includes the N-word!  It’s kind of hard to tell that piece of American history without the N-word.  I thought I knew the Jackie Robinson story pretty well, but the Burns documentary shocked me with its description of the overt, unashamed racism of a time not so long ago.  So it saddens me to see a teacher getting punished for trying to teach young kids about some of that history and why they should be a bit more thoughtful in their use of language.  I wonder if that Chicago principal would allow the kids in the school to watch this documentary.

I’ve been practicing school law long enough to know that there is always more to the story than appears in the court’s opinion.  Maybe Mr. Brown was a bad teacher.  Maybe he wasn’t as good a role model as he portrays himself.  But on the face of it, this case looks like a boneheaded decision by a narrow minded principal upheld by a school board that ought to know better and a court that labeled the decision stupid….but legal.

The case is Brown v. Chicago Board of Education, decided by the 7th Circuit Court of  Appeals on June 2, 2016.  Here’s a piece of trivia for you: the opinion is written by Judge Diane Wood, the only federal judge that the Dawg once asked out on date.  For the record, the Dawg’s motion was denied.


File this one under: FIRST AMENDMENT