Campus Free Speech

Tenured Professor Fired for Accurately Quoting Leading Campus Speech Code Case

The professor, chair of the Central Michigan University journalism department, was teaching a media law class, and quoted a case that discussed the use of the word "nigger" at public universities.

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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]

The result:

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.

 

NEXT: Today in Supreme Court History: September 3, 2005

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  1. Given that they fired him for quotjng the case holding it is illegal to fire him, they can’t exactly argue that they didn’t specifically intend to violate the law, nor that their conduct is covered by qualified immunity or that they didn’t have specific notice it was illegal.

    1. Yeeeeep, this ought to be a fun one.

      1. Oberlin part deux?

        I’d so love to see it….

    2. Actually, in Dambrot, the basketball coach’s firing was upheld. While the court agree that the college speech code was unconstitutional, Dambrot could be fired regardless of the whether the firing was predicated in violation of the speech code. The court analyzed the speech under Pickering-Connick and concluded that the speech was not on an issue of public concern, and thus it never reached the balancing test.

      1. True, although the second case cited by Prof. Volokh makes it pretty clear that this firing would be unconstitutional.

  2. Are we sure he was fired?

    Might he not have resigned even if under pressure or with a severance package? I was unable to find a bio of him so I can’t see if he would likely have been eligible for retirement.

    1. rsteinmetz: I appreciate the question, but a source of mine reports that he was indeed fired, and that seems consistent with the “unable to comment on personnel matters” line from the university — universities are generally fine with saying that a faculty member has retired (even if they may not explain the circumstances or motivations of the retirement).

      1. Be careful with that — there are ways to still list it as a resignation.
        An inquiry to the AAUP might be interesting.

    2. “Might he not have resigned even if under pressure or with a severance package?”

      You’re suggesting he may have been given a severance package that was unavailable to professors who didn’t say “nigger”? That would still be a problem.

      1. Better to pay the man with a confidentiality agreement that to lose a law suit.

        One of the news reports says he was accused of using the word in question when not quoting a legal document, which could give rise to his firing..

      2. THE VOLOKH CONSPIRACY

        This blog has operated for
        ZERO (0) DAYS
        without using a vile racial slur
        and for
        496 DAYS
        without imposing
        viewpoint-driven censorship.

        DON’T MISS THE HUGE 500-DAY CELEBRATION*!
        (*Volokh Board of Censors permitting, of course)

  3. In a similar incident, Campus Reform says a professor was placed on leave for saying a Chinese word that sounds like the n-word.

    1. A chink in the armor of the first amendment?

      1. Nega, please.

    2. TwelveInchPianist: Thanks very much for the tip; I hadn’t heard of it, but I looked into it and posted this item.

      1. Great post!

  4. This kind of silliness seems condescending toward those who are offended by the word. It’s as though the problem with the word is the way it sounds or the way it looks when written.

    The word is offensive in so many ways – in what it reminds us of, in the disrespect inherent in referring to people as such, in its derogatory intent, in its link to the harassment, denials, abuse and subjugation that it coincided (and to some extent still coincides) with.

    Its use brings to mind many such things. But that’s true whether someone substitutes “the N-word” or accurately quotes “nigger.” We all know what word is being referred to. We get the sentiments it, if used in a less clinical context, would be expressing. We can’t be shielded from the concepts involved – from all that the word’s usage entails – by someone substituting “-word” for “igger.” All we’re shielded from is the sound of it being spoken or the look of it as written.

    I think the vast majority of those offended by the word are offended by the substance underlying it, not (or not nearly as much so) its superficial qualities. If the substance is being called to mind anyway, does the superficial matter? Maybe it matters in other contexts, when the substance can be left far from mind – but that’s not the situation with what we’re discussing here.

    The suggestion of this kind of silliness – these kinds of responses to the word being accurately quoted – is that the superficial qualities of the word are what matter, what make it offensive. It’s okay to remind us of the substance, but in doing so we must avoid the superficial. Somehow those who might be offended can, in this context, handle the former but not the latter? In other words, their tendency to take offense is itself less about substance and more about superficiality. That seems insulting to me.

  5. Professor Volokh – I take it that we can say with confidence, absent some unusual circumstances, that it would be unconstitutional for the university to discipline a student in one of Professor Boudreau’s classes for quoting the word “nigger,” from the same court case, as part of a class assignment?

  6. What I find so odd about this is that any other curse or slur can be used in appropriate, formal context for quote or discussion. Furthermore, the word is freely and openly used by an entire subset of the population in both reference and insult.

    However, a white person accurately quoting someone in a direct, clinical context is so horrific that even overrides tenure?

    I have one description for this action: “Voldemort”. It’s a magic word so horrible that it becomes poisonous if said by a certain type of person.

    1. There is certainly nothing to be said for a policy that bans only one slur among many, let alone enforcing a policy that did not previously exist. But the first amendment gives less protection for professorial or classroom speech than some might think. If Eugene had a habit of spending 60 seconds of classroom time discussing the L.A. Dodgers’ game from the previous day, a dean would be within his rights — though silly and overbearing — to tell him to stick to his knitting. If Eugene had a habit of yelling at his students, the dean could tell him to knock it off, even if Eugene said that judges frequently yell at lawyers and he thinks it pedagogically valuable for them to have that experience in class.
      For similar reasons, I don’t think a consistent, articulated policy against using slurs or obscenities or blasphemies in class, even as direct quotes (as opposed to bowdlerizing materials containing them), would violate the first amendment or academic freedom. I would not, myself, push for or endorse such a policy, but if I got outvoted, I would follow the policy.

  7. Fired for being at the wrong place at the wrong time, is the nature of at will employment.

    1. And tenure ….?

      1. It appears the difference is, at will doesn’t require any reason to be given, while tenure only requires any reason to be given.

        1. any non-discriminatory reason, that is.

  8. “And Dambrot mentioned the word…19 times”

    Maybe it was the Dambrot opinion that the guy in the convenience store parking lot was blasting from his car radio at a really loud volume.

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