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  • Not All Speech in the Classroom is Protected

    The First Amendment and workplace discrimination commonly intersect when an employee claims unlawful retaliation, suspension, or termination based upon the employee’s exercise of an ostensible right to free speech and expression.

    Dr. Teresa Buchanan was a tenured professor at Louisiana State University where she taught in the Early Childhood Program for teacher education before she was fired for comments made in the classroom. In March of 2019, the Fifth Circuit held that Dr. Buchanan’s First Amendment rights were not violated by LSU.

    In 2012, a group of students wrote a letter to LSU complaining about Dr. Buchanan’s offensive comments. The letter included examples such as: “a woman is thought to be a dike if she wears brown pants”; “it was a choice to be in the program and it was not the fault or problem of the professors if any of [you] chose to be mommies or wives . . . “; and use of “extreme profanity on a regular basis.” LSU also received complaints about Dr. Buchanan’s classroom conduct from other students. According to one student, the professor made comments regarding the student’s sexual relationship with her fiancé. The student claimed Dr. Buchanan said her fiancé was “supportive now while the sex is good, but just wait until you’re married five years.”

    In 2013, LSU received a complaint from the superintendent of a local public school regarding Dr. Buchanan’s “professionalism and her behavior” after she visited schools in his district. These complaints were reported to the Associate Dean and were then discussed with the Director of the College of Education, which sparked an investigation by human resources.

    In July of 2014, the Dean recommended to the Provost that Dr. Buchanan be dismissed for cause. The Provost then requested and impaneled a faculty committee. In March 2015, following a lengthy hearing, the committee concluded that Dr. Buchanan had violated LSU’s sexual harassment policies “through her use of profanity, poorly worded jokes, and sometimes sexually explicit ‘jokes’” and created a “hostile learning environment.” Then, following the President’s recommendation, LSU’s Board of Supervisors dismissed Dr. Buchanan with cause in June 2015.

    Dr. Buchanan filed suit against LSU’s President and Chancellor, Dean of the College of Human Sciences and Education, Vice Chancellor of the Office of Human Resource Management, and the Director of the Office of Human Resource Management and Executive Director of Equal Employment Opportunities. Dr. Buchanan alleged the Defendants violated her First and Fourteenth Amendment right to free speech and academic freedom.

    The United States District Court for the Middle District of Louisiana held that “there was no evidence of a violation of Dr. Buchanan’s First Amendment right to academic freedom.” The professor appealed.

    The Supreme Court of the United States established in Keyishian v. Bd. of Regents that academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Accordingly, the U.S. Court of Appeals for the Fifth Circuit has held “classroom discussion is protected activity.” Kingsville Indep. Sch. Dist. V. Cooper, 611 F.2d 1109, 1113 (5th Cir. 1980). However, in Buchanan v. Alexander, the court stated “even this protection has limits: Students, teachers, and professors are not permitted to say anything and everything simply because the words are uttered in the classroom.” Buchanan, 919 F.3d 847, 852 (5th Cir. 2019).

    “When a public employee speaks in his capacity as an employee and on personal matters, rather than in his capacity as a citizen on a matter of public interest, his speech falls outside the protection of the First Amendment.” The Fifth Circuit reasoned the “use of profanity and discussion of professors’ and students’ sex lives were clearly not related to the training of Pre-K—Third grade teachers.” Therefore, the Fifth Circuit found Dr. Buchanan’s speech was not a matter of public concern and, thus, not protected.

    Educators should be mindful of the limitations of the First Amendment within the scope of their employment. Educational institutions may create policies that regulate the speech of their employees in the classroom that subject educators to discipline, up to and including termination.

    If you have any questions or concerns regarding education or employment related issues, please contact Hayley B. Dryer at HDryer@cullenanddykman.com or at (516) 357 – 3745.

    Thank you to Joelle Pisani, a summer associate at Cullen and Dykman LLP, for her assistance with this post.