The Volokh Conspiracy
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Court Reaffirms First Amendment Right to Quote Epithets in University Class Discussions
From Friday's decision by Judge Michael Watson (S.D. Ohio) in Sullivan v. Ohio State Univ.:
American public universities have traditionally "prided themselves on being forums where controversial ideas are discussed and debated." Few universities have shown a stronger commitment to being such a forum than The Ohio State University ("OSU"). The crown jewel of OSU's commitment may well be a course titled "Crucial Conversations"—designed to train students how to communicate productively about difficult topics.
Yet a group of OSU officials (Defendants) terminated the lecturer who taught that course (Plaintiff Mark Sullivan) because of his controversial classroom speech, or so he alleges. For considered pedagogical reasons germane to the course, Sullivan quoted the n-word. After a student complaint launched an HR investigation, Defendants declined to renew Sullivan's employment contract.
Seeking reinstatement and damages, Sullivan brought a First Amendment retaliation claim, which Defendants now move to dismiss. The First Amendment forbids public universities from dismissing lecturers because of controversial academic speech. So, accepting Sullivan's allegations as true, for the reasons below, the Court DENIES Defendants' motion….
"Crucial Conversations" used a practical, action-based pedagogy. Students begin by critiquing video vignettes of bullying and eventually escalate to simulating difficult conversations themselves in one-on-one and group exercises. Some of these simulations involved mock conflict—complete with intentionally triggering, provocative, disrespectful, or shocking language. Sullivan warned his students in advance that the exercises would involve such language. The theory behind this pedagogy is that a classroom role play provides a low-stakes environment ideal for honing conversational skills.
One role play scenario cast Sullivan as Whitey Bulger (the late Boston based organized crime boss) and a student as a law enforcement officer trying to obtain Bulger's cooperation. The purpose of this simulation was to teach students how to engage with offensive language (Bulger's words as recited by Sullivan) while keeping the conversation on track to productive purposes (obtaining Bulger's cooperation). During the actual simulation, quoting a real statement Bulger made to law enforcement, Sullivan said,
I don't want to be placed in a prison cell with a bunch of [n-word]s. You make sure I'm in a place with my kind and I'll talk about who was behind that job of killing [X].
Sullivan hoped for a student response such as,
I understand you have strong feelings about the kind of cell mates you will be assigned to live with. We will want to listen more carefully to what matters to you as we also work with what is acceptable under prison rules and regulations.
Sullivan performed this simulation all 49 times he taught the course, without incident for the first 48.
Sullivan taught "Crucial Conversations" for the 49th time in the Fall 2021 semester. After conducting the Whitey Bulger role play in September, a student in the course reported Sullivan for being racially insensitive and offensive. Defendant [Robert Lount, Chair of the Management and Human Resources Department at OSU,] informed Sullivan on September 30 that the Business School's HR Department required Lount to investigate Sullivan and his course…. On the substance of the investigation, Sullivan pleads only one detail: a phone interview, during which Lount communicated that he understood Sullivan to be performing his duties responsibly. Despite this assurance, at some time unknown to Sullivan, Defendants (and other unknown individuals) deliberated and decided not to renew Sullivan's contract….
To prove a First Amendment retaliation claim, Sullivan must show: (1) he engaged in protected speech; (2) Defendants took an adverse action against him; and (3) there is a causal connection between the protected speech and the adverse action.
Courts assess whether a public employee's speech is protected by the First Amendment under the Pickering-Connick framework. Applying that framework, the Court asks two questions: First, was Sullivan speaking on "a matter of public concern"? And second, was his interest in doing so greater than OSU's interest in "promoting the efficiency of the public services it performs"?
{Normally, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti.But that rule does not apply to "professors at public universities … engaged in core academic functions, such as teaching and scholarship." They receive the Pickering-Connick framework minus Garcetti.} …
Classroom instruction generally implicates a matter of public concern "because the essence of a teacher's role is to prepare students for their place in society as responsible citizens." … Sullivan's purpose, as alleged, was not just to trigger his students. He triggered them for a separate, ultimate purpose: teaching them to converse productively despite having been triggered. The context—the general mission of the course—renders that purpose plausible….
[I]n Hardy v. Jefferson Cmty. Coll. (6th Cir. 2001) …, the Sixth Circuit held that a professor's use of the n-word implicated matters of "overwhelming" public concern. Hardy involved a community college that declined to renew an adjunct professor's contract after he said the n-word (among other offensive words), prompting a student complaint. The adjunct uttered the offensive words during an in-class lecture on language and social constructivism, part of a course called "Introduction to Interpersonal Communication." The lecture examined how language (like then-word) can marginalize and oppress. The "academic context" of the adjunct's use of the n-word distinguished it from the coach's in Dambrot v. Cent. Michigan Univ. (6th Cir. 1995) [where the court found the coach's using the word during a locker room speech to be constitutionally unprotected -EV].
The "academic context" here is materially on all fours with that in Hardy. As was true for the adjunct, Sullivan's in-class use of the n-word was allegedly germane to an academic purpose. The lessons were not identical, of course. The adjunct's lecture abstractly reflected on racially charged language, whereas Sullivan's exercise pragmatically trained students how to respond to it. But, at bottom, both the Hardy lecture and the Sullivan exercise relate to race and power conflicts in society-matters of overwhelming public concern. By force of Hardy, Sullivan's in-class utterance of the n-word likely implicates race relations-a quintessential matter of public concern.
Beyond just race in general, Sullivan's speech, as alleged, also addresses the specific matter of whether using the n-word in class can have worthwhile pedagogical value. This matter is undeniably one of public concern. This debate entered the zeitgeist most prominently as grade schools considered banning classic books that contain the n-word.
On one side of this debate are those who believe that educators should never use the word because it is so hateful, degrading, and traumatizing that any pedagogical value it might have could never outweigh the pain or distraction it causes. On the other side are those who believe the opposite: uttering slurs can be "sound pedagogy—not just something [educators] have a right to do, but itself the right thing to do"—because the n-word prompts reflection on American history, quoting it may be necessary for precision, and hearing it in the classroom prepares students to hear it in the "real world." {Randall Kennedy & Eugene Volokh, The New Taboo: Quoting Epithets in the Classroom and Beyond, 49 Cap. U.L. Rev. 1, 11 (2021).} Not only did Sullivan implicitly take a side in this debate by uttering the n-word in his classroom, but his whole "Crucial Conversations" course was allegedly a monument to the view that hearing charged language in a classroom is pedagogically worth it. The Court need not take a position on this debate over the pedagogical worth of the n-word; it is sufficient to conclude that Sullivan's speech did and therefore involved another matter of public concern.
In sum, as alleged in the Third Amended Complaint, Sullivan's use of the n-word during an in-class exercise relates to both race generally and the nword's pedagogical value specifically. For those reasons, the Court holds that Sullivan's speech is likely on a matter of public concern and deserves First Amendment protection, satisfying the Connick half of the Pickering-Connick framework….
Under Pickering, the Court applies a balancing test, which weighs "the interests of the [professor], as a citizen, in commenting upon matters of public concern" against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
Here, that balance favors Sullivan.
On Sullivan's half of the scale, the Court finds "the robust tradition of academic freedom in our nation's post-secondary schools." As the United States Supreme Court once remarked:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.
By comparison, the interests on OSU's half of the scale are scant. Defendants assert that Sullivan's use of the n-word during class was so disruptive that it impeded OSU's ability to fulfill its responsibilities. As evidence of this disruption, Defendants cite the student complaint that prompted (some of) them to investigate.
Disruption may not even deserve a place on Defendants' side of the Pickering scale. See Hardy. After all,
undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression …. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans.
But even if disruption does belong on the Pickering scale, here it does not cause the scale to budge. The disruption caused by the n-word (and other slurs) in Hardy did not tilt the Pickering scale in the community college's favor. There, as here, only one student complained about only one lecture. In fact, Hardy's reasoning applies with even more force here. The educator in Hardy uttered many slurs; Sullivan uttered only one. And not only did Sullivan allegedly teach the rest of the semester without any complaints, but he also taught the same material 48 times previously without any student complaints.
What is more, Sullivan says that each time he taught the course, OSU approved. "[P]rior approval of controversial speech by the school or the Board undercuts the interests of the state in controlling the workplace." See also Cockrel v. Shelby Cnty. Sch. Dist. (6th Cir. 2001) ("[W]e cannot allow [concerns of harmony, efficiency, and discipline] to tilt the Pickering scale in favor of the government … when the disruptive consequences of the employee speech can be traced back to the government's express decision permitting the employee to engage in that speech."). If Sullivan uttering the n-word during a Whitey Bulger role play was so disruptive, why would OSU and Defendants allow him to do it 48 times previously?
All in all, taking his allegations as true, Sullivan's dismissal smacks of the "pall of orthodoxy" and "undifferentiated fear of disturbance." So, weighing Sullivan's interest in academic freedom against OSU's professed interest in avoiding disruption, the Court holds that Sullivan's claim likely survives Pickering balancing….
And the court concluded that "Sullivan's right to free speech in the classroom is 'clearly established,'" so that the case couldn't be dismissed on qualified immunity grounds:
A long line of U.S. Supreme Court precedent establishes a First Amendment right to free speech in academic contexts, especially the classroom. See generally Keith E. Whittington, Professorial Speech, the First Amendment, and Legislative Restrictions on Classroom Discussions, 58 Wake Forest L. Rev. 463, 482-92 (2023). Although the Supreme Court held, in Garcetti, that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline[,]" it expressly declined to address whether that rule would apply "to a case involving speech related to scholarship or teaching."
The Sixth Circuit, in Meriwether v. Hartop (6th Cir. 2021), walked through the door that Garcetti left open. Hartop distilled the principle, from Supreme Court and Sixth Circuit precedent, that "professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching." The Sixth Circuit has since held that this principle was clearly established as of 2017. Thus, whether the First Amendment protected Sullivan's alleged speech in 2021 is "beyond debate."
But even if this principle were too general to shed qualified immunity, the Sixth Circuit in Hardy held specifically that when a professor utters slurs like the n-word for an educational purpose (as Sullivan allegedly has here) that speech is protected. Hardy has been good law since it was decided ….
The careful reader will have noticed that Judge Watson substituted "n-word" for "nigger," including in the quotes. But that fits his point that professors are entitled to choose whether or not to expurgate; likewise, some judges expurgate and others don't, and still others sometimes use the accurate quote and sometimes the expurgation. (The same is true with other words, such as "fuck," see, e.g., here and here.) For the text of Randy Kennedy's and my article, which the court cited, see here.
Daniel Petrov and Sarah Wyss (Thorman Petrov Group Co., LPA) represent plaintiff.
