Memorandum to Macomb Community College Faculty Senate

Despite the widely held, and incorrect, belief to the contrary, a public employer
may limit what an educator says in a classroom and may discipline him for
inappropriate comments that do not involve a matter of public concern. The
notion of "academic freedom" is not a license that permits anyone to say
anything at any time. Rather, the United States Constitution has been
construed to permit a public employer to restrict speech in a number of
important ways. While these limitations must be narrowly applied, they permit
Macomb Community College ("the Employer") to prevent a faculty member
from using profanity in his class unless directly relevant to a subject being
taught or a related to a matter of public concern.
 

A.
 

MCCFO is presented with the case of a member who chooses to inject
profanity and crude references in his class discussions. These statements
included discussion of necrophilia; included use of crude phrases pertaining to
members of religious orders; included crude discussions of President Clinton's
encounters with Monica Lewinsky.
The member admits making these statements. He defends them as being
proper both in form and substance. He argues that the form is "vernacular", the
substance part of ordinary student/teacher interchange. He asserts that he,
alone, decides what is appropriate in his class; that the Employer may not do
so. He rests on what he claims to be rights arising under the First Amendment
to the United States Constitution. The member reads the text literally and
concludes that his employer may not limit what he says in class.
 

B.
 

The First Amendment to the United States Constitution (which applies to the
states through the 14th Amendment) provides free speech protection to
persons working in the public sector. However, the Supreme Court has
balanced the interests of the public employee to free speech with the interests
of the government when acting as an employer to manage its workplace. The
most significant iteration of this principle is Connick V Myers, 461 U. S. 138, 1
IER Cases 178 (1983). There, the Court approved the discharge of a public
employee who had circulated a questionnaire to co-workers calling into
question the management techniques of supervisors. The Court concluded that
not all employee speech is equally protected by the Constitution. It articulated a
test to determine whether the particular speech was entitled to such protection.
The test turns on whether the speech in question pertains to a "matter of public
concern." Public employee speech enjoys First Amendment protection if it
relates to a matter of public concern. This protection applies in or out of the
classroom. But workplace speech not related to a matter of public concern
does not necessarily enjoy such protection:

"When employee expression cannot be fairly considered as relating to any
matter of political, social, or other concern to the community, government
officials should enjoy wide latitude in managing their offices, without intrusive
oversight by the judiciary in the name of the First Amendment. Perhaps the
government employer's dismissal of the worker may not be fair, but ordinary
dismissals from government service which violate no fixed tenure or applicable
statute or regulation are not subject to judicial review even if the reasons for
the dismissal are alleged to be mistaken or unreasonable." Connick V. Myers,
182

Even where speech is protected by the First Amendment, however, a further
inquiry is required. Connick repeated a "balancing" test articulated in Mt.
Healthy City Board of Ed. V Doyle, 429 U.S. 274,1 IER Cases 76 (1977).
This test requires consideration of the respective interests of employer and
employee:

"The Pickering balance requires full consideration of the government's interest
in the effective and efficient fulfillment of its responsibilities to the public. One
hundred years ago, the Court noted the government's legitimate purpose in
"promot [ing ] efficiency and integrity in the discharge of official duties, and in
maintain [ing ] proper discipline in the public service." Ex parte Curtis, 106
U.S., at 373. As Justice Powell explained in his separate opinion in Arnett V.
Kennedy, 416 U.S. 134, 168 (1974):

"To this end, the Government, as an employer, must have wide discretion and
control over the management of its personnel and internal affairs. This includes
the prerogative to remove employees whose conduct hinders efficient operation
and to do so with dispatch. Prolonged retention of a disruptive or otherwise
unsatisfactory employee can adversely affect discipline and morale in the work
place, foster disharmony, and ultimately impair the efficiency of an office or
agency."
Connick, id., 184.

The test, then, is to first determine whether speech comments on a matter of
public concern. If it does, the next task is to balance the respective interests of
employee and employer.
 

C.
 

Profanity or crude words are not entitled to First Amendment protection
because neither is a matter of public concern. In Dambrot V CMU P. 2d. ,1O
IER Cases 1 130 (1995) the United States Court of Appeals for the Sixth
Circuit (which includes Michigan) rejected an appeal by a college coach who
had used a racial epithet to describe some of his players. He contended that he
was merely trying to motivate the team by favorably comparing them with a
certain racial group. His discharge was affirmed by the Court which found that
it was not entitled to Constitutional protection. Applying this test the Court
held:

"Focusing on the "content, form and context" of Dambrot's use of the word
nigger," this Court can find nothing "relating to any matter of political, social or
other concern to the community." Dambrot's locker room speech imparted no
socially or politically relevant message to his players. The point of his speech
was not related to his use of the N-word but to his desire to have his players
play harder."

In Martin V Parrish F.2d. ,1 IER cases 1388 (5th cir, 1986) the Court
expressly rejected the contention that profanity may be a "matter of public
concern." Sustaining the discharge of a college teacher for regularly using curse
words in his class, the Court held that

"The first amendment does not prevent schools from determining that the
essential terms of civil, mature conduct cannot be conveyed in a school that
tolerates lewd, indecent or offensive speech and conduct." id, 1390
 

D.
 

MCCFO is entitled to conclude that the speech here is not entitled to First
Amendment protection, It does not touch on a matter of public concern.
Indeed, the member does not defend the speech on such a basis. Rather, the
member seems to suggest that he, alone, may decide what is said in his
classroom. That is an inaccurate reading of the law. The College was entitled
to determine that the particular words here did not relate to anything being
taught in the member's class. And it was entitled to determine that the speech
did not relate to matters of public concern. Given that, the Union is entitled to
conclude that the member's grievance pertaining to his suspension does not
present a viable claim under the collective bargaining agreement.
 

E.
 

The member has been directed to refrain from discussing his suspension with
persons who are students in his class, This restriction is entirely consistent with
Connick, id. The reason is that the order is very narrowly tailored and intended
to prevent disruption of the campus. The order might be subject to question if
it applied outside the campus, e.g. to the news media. But it does not. Given
that, the Union is entitled to conclude that the order does not present a viable
claim under the Union's collective bargaining agreement.