Bob Grisham, an Alabama high school teacher, has been suspended for 10 days without pay as a result of making comments referencing the first lady’s posterior. Grisham’s remarks including referring to the first lady as “fat butt Michelle Obama” can be heard in an audio recording made by a student. Additionally, Grisham’s rant also included derogatory remarks concerning homosexuals. The comments arose from a class room discussion of current affairs. Grisham attributed the school’s low-calorie lunch menu to the first lady, adding that “she looks like she weighs 185 or 190. She’s overweight.”
The school responded by barring Grisham from classroom teaching for one year and requiring that he attend sensitivity training. Grisham, who is also the head football coach, will be assigned “other academic duties” in place of traditional classroom instruction. Grisham will be required to attend monthly meetings with Mark Butler, the school’s personnel director, in order to ensure that he is meeting the obligations set forth by the school. The Board of Education did not address Grisham’s coaching position when determining how to deal with the situation.
The seminal case addressing the First Amendment rights of public school teachers is Pickering v. Board of Education, 391 U.S. 563 (1968). The case involved a teacher who submitted letters to a local newspaper criticizing the school board’s allocation of funds. The Court held that public employee’s do not forfeit their First Amendment rights when commenting on matters of public concern. However, the Court used a balancing test taking into account “the interests of the teacher, 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.” The Court ultimately determined that the teacher’s letter did not undermine the operation of the school or interfere with the teacher’s ability to perform his job duties. The holding in Pickering was further elaborated upon in Connick v. Myers, 461 U.S. 138, were the Court noted that a perquisite to performing the Pickering balancing test was the determination of whether the speech in question really involved a matter of public concern. In this respect, the “content, form, and context” of the statement must be considered.
However, lack of further guidance from the Supreme Court has resulted in disparate application of the Pickering and Connick standard among the Circuits. In particular, some courts extended the reasoning of Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) in which the Supreme Court determined that in assessing restrictions on student speech the court must consider whether the district had “legitimate pedagogical concerns” in limiting the speech. Although, originally applied only to constraints on remarks made by students, courts have further extended the reasoning to statements made by teachers as well.
In 2006, the Supreme Court held that the Pickering balancing test should only be applied when a public employee makes statements as a private citizen. In Garcetti v. Ceballos, 547 U.S. 410 (2006) the Court stated that “[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” However, Garcetti v. Ceballos involved comments made by a district attorney and the Court explicitly refused to determine whether their holding applied to public school teachers.
Regardless of the standard utilized, it is unlikely that the comments made by Girsham would qualify for First Amendment protection. In particular, the inflammatory comments regarding homosexuals would certainly fall outside the purview of protected speech.
If your institution has any further questions or concerns about education law related matters, please email Cynthia Augello at firstname.lastname@example.org or call her at (516) 357-3753.
A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.