The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I wrote about the case when the professor had merely been put on leave; now, he is "no longer employed by" the university (which, in this context, seems to mean that he has been stripped of tenure and fired). I thought I'd repost my analysis, but also add a link to Randy Kennedy's and my draft article defending "Quoting Epithets in the Classroom and Beyond."
Dambrot v. Central Michigan University (6th Cir. 1995) is one of the leading cases on the First Amendment and campus speech codes. It struck down a Central Michigan University speech code that banned, among other things, any speech
that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by … (c) demeaning or slurring individuals through … written literature because of their racial or ethnic affiliation; or (d) using symbols, [epithets] or slogans that infer negative connotations about the individual's racial or ethnic affiliation.
But it also upheld the firing of a basketball coach who had used the word "nigger" in a motivational speech:
According to Dambrot's testimony, Dambrot told the players they hadn't been playing very hard and then said "Do you mind if I use the N word?" After one or some of the players apparently indicated it was okay, Dambrot said "you know we need to have more niggers on our team…. Coach McDowell is a nigger, … Sand[er] Scott who's an academic All-American, a Caucasian, I said Sand[er] Scott is a nigger. He's hard nose, [sic] he's tough, et cetera." He testified he intended to use the term in a "positive and reinforcing" manner. The players often referred to each other using the N-word during games and around campus and in the locker room. Dambrot stated he used the word in the same manner in which the players used the term amongst themselves, "to connote a person who is fearless, mentally strong and tough."
The court concluded that the speech wasn't on a matter of "public concern," and thus not protected against the government as employer, because it wasn't tied to any broader matters, wasn't part of classroom teaching, and "served to advance no academic message":
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. Like the use of profanity in Martin, Dambrot's use of the N-word was intended to be motivational and was incidental to the message conveyed….
Unlike the classroom teacher whose primary role is to guide students through the discussion and debate of various viewpoints in a particular discipline, Dambrot's role as a coach is to train his student athletes how to win on the court…. Dambrot's speech served to advance no academic message and is solely a method by which he attempted to motivate—or humiliate—his players ….
A later case from the same court, Hardy v. Jefferson Community College (6th Cir. 2001), specifically held that Dambrot was inapplicable when the "in-class use of the objectionable word was germane to the subject matter of [a] lecture" by a classroom teacher. In any event, Dambrot is an important precedent, and of course especially interesting at Central Michigan University, where the decision arose.
And Dambrot mentioned the word "nigger" 19 times (as well as "N-word" 10 times, plus "N word" once in a quote). Though using the word to motivate players, the court concluded, was punishable, mentioning the word in describing the facts struck the judge as perfectly proper.
And I doubt that this was because the author, Judge Damon Keith, was unaware how offensive the word could be; as a black man born in 1922 Detroit, I would guess that he had been called it on many occasions. Rather, I assume that he (1) thought it important to accurately quote the facts, even when the facts include offensive words, and (2) drew a sharp distinction between wrongfully using a word as an insult (or perhaps even as a compliment, as in Dambrot itself), and properly mentioning it as a fact. (Indeed, both these points are largely uncontroversial in universities and among judges for most other insults; and they're broadly accepted by judges as to "nigger" as well as for any other word.)
Unsurprisingly, then, Prof. Tim Boudreau, chair of Central Michigan University's Journalism Department, followed the same pattern: presumably thinking it important to accurately quote the facts, and distinguishing in his mind use from mention, he likewise quoted the word twice while quoting the facts of Dambrot. In the words of Central Michigan Life (Courtney Pedersen),
In the nine-second video, Boudreau can be heard saying, "… so he said… 'I don't want you to be like n—–s in the classroom, but I want you to play like n—–s on the court'" during what appears to be a discussion about the 1993 lawsuit between CMU and fired men's basketball coach Keith Dambrot. The words Boudreau was recorded saying during the lecture were the comments made by Dambrot to the team, not Boudreau's own words. [The expurgation, of course, was supplied by the newspaper I quote, and not by me. -EV]
On June 22, alumna Skyler Mills, of Miami, Florida, posted a video on Instagram of Boudreau lecturing in his media law class. Mills' mother, Lisa, commented that the video was taken during her daughter's junior year. Mills graduated in 2019.
"Since we are exposing racists, let me introduce you to @cmuniversity professor Tim Boudreau who freely uses the n-word in class whether it be providing examples or quoting an individual," Mills, an advertising major, captioned the post. "I know I wasn't the only student of color who felt humiliated and uncomfortable by his racially insensitive statements."
The university's official Instagram account responded to Mills on June 24: "Skyler, thank you for bringing this to our attention. We are sorry this happened. At CMU we are committed to building an inclusive environment where every person feels welcome and valued. Racist conduct by any member of our university community violates that commitment as well as our core values. We have forwarded your message to the appropriate campus offices so they can be properly reviewed. Please know that CMU takes these types of reports seriously and investigates them to the fullest extent possible."
On June 26, faculty received word that Boudreau had been placed on paid administrative leave [and has now been fired -EV] ….
So the word that Judge Keith mentioned 19 times in his opinion, and that has appeared in over 10,000 other opinions (written by judges of all races and all political stripes, of course) and over 10,000 briefs (and likely much more than that)—much more often than "N-word" or "n—r"—now can't be said at Central Michigan University by a professor teaching a media law class about that very opinion.
Disclosure: For a similar incident involving me, though one in which the university did not take any formal administrative action, see here. As you can gather from Prof. Kennedy's and my article, this incident is, if anything, only reinforcing my views on the matter.