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Firing Teacher for Mentioning Racial Epithets in "Cultural Diversity" Class May Violate Connecticut Constitution
From a decision earlier this month in Byrd v. Middletown Bd. of Ed., by Connecticut trial court Judge Sheila Ozalis; Byrd was a teacher who "was teaching a lesson on 'recognizing racial epithets' as a part of the Cultural Diversity Curriculum at Beman Middle School":
The plaintiff alleges that from 1997–2021, she taught eighth grade students about the District's Cultural Diversity Curriculum, along with other units in the eighth grade Health Curriculum, including internet safety, self-esteem, romantic relationships, drug education, and career education. The plaintiff alleges that Equity Training in recent years for the teachers included the idea that teachers should be challenging students about uncomfortable topics because if people stay in their comfort zone, there is no new growth.
The plaintiff alleges that while employed by the Middletown School District for over twenty years, she presented the same Cultural Diversity Curriculum at Beman Middle School to eighth graders without complaint. She also alleges that this curriculum has been used by the District for nearly ten years, was posted on its website, approved by the Defendant, and was reviewed by the District in the summer of 2021 without any changes made. As a part of the Cultural Diversity Curriculum, the Plaintiff spoke to students about the diversity within their own community. "Lesson #3" of the published and approved curriculum describes the concept of the lesson as "recognizing racial epithets" and notes the discussion of racial epithets as part of the lesson plan.
The plaintiff alleges that during this lesson, she would introduce vocabulary and examples of attitudes towards distinct groups, including language demonstrating stereotypical thinking and hostility to a specific group or prejudices about particular groups and their alleged predilections and behaviors. She alleges that her open discussion of racial and ethnic stereotypes and slurs had been an established part of the posted Cultural Diversity Curriculum for over ten years and that it was the Plaintiff's practice to verbalize and specifically name the racial slurs that would be discussed during the lesson and ask her students if they had heard that specific slur before.
The plaintiff alleges that she would discuss each word's meaning and history and ask students why racial slurs were used to put people down and why people enjoy making jokes about and ridiculing minority groups. The Plaintiff would focus on the group targeted by the words and how the words hurt members of that group to assist in helping students make better decisions in life, including in their use of language, by providing a better understanding of the words, their origins, and society's pernicious use of them. The Plaintiff also alleges that she sought to make the students better citizens in a multicultural world.
Some of this language could be offensive and difficult for students to discuss. The Plaintiff alleges that she would tell students that they could use her "emergency pass" if they wished to leave a lesson because of any upset regarding the words to be discussed. If the student wanted to, they could even bring a friend with them when they took the emergency pass. The Plaintiff would then follow up with that student during or at the end of class to see if further resources were needed. The plaintiff alleges that nevertheless, this frank discussion about the realities of prejudice and the language utilized by some members of society at large was meant to assist students in recognizing and grappling with the prejudiced language and hostility that they will confront in life, and to make students more conscious of the prejudice and learned behavior existing in their own environments.
On October 29, 2021, the Plaintiff presented the "recognizing racial epithets" lesson to her third class of the day—the first two having occurred without incident—and began her discussion of racial slurs as usual by expressly saying the slurs aloud. The plaintiff alleges that one of the words she identified was "nigger," which she described as one of the most derogatory and offensive slurs that was historically used to depict African Americans as ignorant and uneducated. She alleges that on this day with this particular group, some students objected and said she should not be saying such language aloud, turned around in their chairs out of discomfort, and even videotaped the class discussion…..
Plaintiff alleges she was threatened with firing, and accepted a demotion to avoid being fired. She sued, claiming this violated the Connecticut Constitution's free speech clause, which has been interpreted as more protective than the First Amendment as to employees' speech that's part of their jobs (for a case finding no protection under the First Amendment in a similar factual situation involving K-12 teaching, see Brown v. Chicago Bd. of Educ. (7th Cir. 2016)):
Departing from the limitations imposed by Garcetti v. Ceballos (2006), in Trusz v. UBS Realty Investors, LLC, our Supreme Court held that employees speaking pursuant to official duties have free speech rights. This decision relies heavily on the express language of the Connecticut Constitution. Article first, § 4, of the Connecticut Constitution which provides that "[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty." "By contrast, the first amendment does not include language protecting free speech on all subjects." ….
To narrow the scope of protected employee speech, the Trusz Court adopted a modified Pickering/Connick balancing test such that "only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee's favor when an employee is speaking pursuant to official job duties. Nonetheless, "speech pursuant to an employee's official duties regarding, for example, a mere policy disagreement with the employer would not be protected, even if it pertained to a matter of public concern and had little effect on a legitimate employer interest." "The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education (1968). Thus, "[i]t is only when the employee's speech is on a matter of public concern and implicates an employer's official dishonesty … other serious wrongdoing, or threats to health and safety … that the speech trumps the employer's right to control its own employees and policies."
The first step in evaluating employee speech is to determine whether the employee is speaking on a matter of public concern. Connick v. Myers (1983). "An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community …." … The Appellate Court has held that racial discrimination against a fellow employee is a matter of public concern….
The inflammatory nature of racial slurs has long been recognized. In evaluating a hostile work environment claim based on sex, the Supreme Court explained the "pervasiveness" requirement by analogizing to racial animus and noted that "[t]here must be more than a few isolated incidents of racial enmity …. Thus, whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs …." Nowhere have our courts made a stronger rebuke of racial slurs than in State v. Liebenguth (2020).
The Supreme Court in that case contextualized fighting words cases by noting at the outset that "there are no per se fighting words …. Consequently, whether words are fighting words necessarily will depend on the particular circumstances of their utterance." The Liebenguth Court recounted that "[w]ith respect to the language at issue in the present case, the defendant, who is white, uttered the words fucking niggers to [parking enforcement officer] McCargo, an African-American person, thereby asserting his own perceived racial dominance and superiority over McCargo with the obvious intent of denigrating and stigmatizing him. When used in that way, [i]t is beyond question that the use of the word nigger is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination."
The Supreme Court spoke with disapprobation on the use of the word "nigger" and stated that "[n]ot only is the word 'nigger' undoubtedly the most hateful and inflammatory racial slur in the contemporary American lexicon … but it is probably the single most offensive word in the English language." Ultimately, the Supreme Court held that the defendant's use of the word "nigger" in combination with his conduct and other derogatory language was likely to provoke a violent reaction and, therefore, his speech was unprotected fighting words. Thus, when the word "nigger" is used in certain contexts, it can be a threat to safety.
The federal government has also recognized the threat of racism. In 2021, CDC Director Rochelle P. Walensky, a physician and scientist, made a media statement and "declared racism a serious public health threat." …
Words evoke racism not because of the letters on the page or their phonetics, but because of the manner in which they are used. Indeed, when divorced from their context, words can be devoid of meaning and lack clarity. Our Supreme Court recognized that context matters in stating that "there are no per se fighting words because words that are likely to provoke an immediate, violent response when uttered under one set of circumstances may not be likely to trigger such a response when spoken in the context of a different factual scenario."
Like our Supreme Court, the Garcetti Court also left open the potential for broader speech protection in certain scenarios when it noted that "[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence." In fact, some courts have held that the utterance of the word "nigger" in the university setting for instructional purposes is protected. See Hardy v. Jefferson Community College (6th Cir. 2001) (where an adjunct instructor's use of the word "nigger" in a lecture on language and social constructivism was protected); Sullivan v. Ohio State University (S.D. Ohio 2025) (professor's use of the word "nigger" in his "Crucial Conversations" course to teach students how to engage productively in racially charged conversations was a matter of public concern).
And the court concluded that plaintiff's claim could therefore go on:
Plaintiff alleges that she did not direct racial slurs at her students in a derogatory manner, but rather she was saying them aloud to instruct students on how to avoid a potential threat created by using those words in public. During a Health class in the 2021–22 school year, taking place amid the backdrop of the Liebenguth decision and the CDC declaration, the Plaintiff alleges that she was acting within the scope of her employment and pursuant to the Defendant's approval when she taught her students a valuable lesson on a matter of public concern: the presence of racism and racially charged language in society today. Thus, the Plaintiff's speech touched upon a threat to health and safety.
Although traditionally a board of education's discretion over the curriculum has trumped the speech rights of public school teachers in primary and secondary education, here, the Plaintiff alleges that she was teaching the Cultural Diversity Curriculum in the manner prescribed by the Defendant. There can be no "mere policy disagreement" when the Defendant itself has adopted the curriculum for the past ten years, including the lesson on "recognizing racial epithets." Like she had in years past, the Plaintiff alleges she simply taught her students to recognize racial epithets and prepared them to confront such words outside the classroom in their communities. She also alleges that by the end of the day, she was placed on administrative leave and threatened with termination. As a result, the Plaintiff has adequately alleged that she was threatened with discharge on account of her constitutionally protected speech ….
This isn't part of the legal test, but the court's analysis here tracks the Connecticut Supreme Court's approach in Liebenguth: That court concluded that defendant could be prosecuted on a "fighting words" theory for using the word "nigger" as an epithet, but the court itself quoted the word over 50 times in discussing the subject, and the word was also quoted 6 times in oral argument.
Lewis Chimes represents plaintiff.
