Brown v. Bd. of Educ. of Chi.

• Decision Date: 26 March 2015
• Docket Number: No. 12 CV 1112,12 CV 1112
• Citation: 84 F.Supp.3d 784
• Parties: Lincoln Brown, Plaintiff, v. Board of Education of the City of Chicago, Defendant.
• Court: U.S. District Court — Northern District of Illinois

84 F.Supp.3d 784

Lincoln Brown, Plaintiff

v.Board of Education of the City of Chicago, Defendant.

No. 12 CV 1112

United States District Court, N.D. Illinois, Eastern Division.

Signed March 26, 2015

William F. Spielberger, Spielberger & Associates, Terence Edward Flynn, Law Office of Terence E. Flynn, Chicago, IL, for Plaintiff.

Linda Hogan, Lucille A. Blackburn, Cheryl J. Colston, Richard Seth Shippee, Susan Margaret O'Keefe, Chicago Board of Education, Chicago, IL, for Defendants.

Memorandum Opinion And Order

Manish S. Shah United States District Judge

Lincoln Brown, a sixth-grade teacher in the Chicago Public Schools, brought up the word “nigger” in a discussion with his students—during what ordinarily should have been a grammar lesson. The school's principal happened to walk into the classroom and heard Brown use the word. About a week later, the principal initiated disciplinary proceedings against Brown for his use of the word in the classroom. The Board of Education suspended Brown for five days. Brown alleges that he was disciplined in violation of the First Amendment, and that the Board's policies violate due process because they are impermissibly vague as applied to his conduct.

The Board moves for summary judgment on both the First Amendment and due-process claims. Brown moves for summary judgment on the due-process claim.

I. Background

A court reviews cross-motions for summary judgment by “construing all facts, and drawing all reasonable inferences from those facts, in favor of the non-moving party.” United States v. P.H. Glatfelter Co., 768 F.3d 662, 668 (7th Cir.2014) (citation omitted). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The plaintiff has taken some liberties with the Local Rule 56.1 process, most frequently by presenting argument in his responses. In some instances, plaintiff neither admits nor denies a fact, but objects to its relevance (e.g., [96] ¶ 55); plaintiff agrees to some facts “as a general matter,” but purports to deny their application to this case (e.g., id. ¶ 11); plaintiff occasionally asserts additional facts, while arguing against the weight to be given an undisputed fact in defendant's 56.1 Statement (e.g., id. ¶ 7).¹ In response to defendant's request that his responses be stricken or disregarded, Brown cites Perez v. Thorntons, 731 F.3d 699, 706 (7th Cir.2013), and argues that striking his responses would be a “gotcha tactic.” Local Rule 56.1 serves an important function–it organizes the evidence and identifies factual disputes—and district courts may require strict compliance with it. Petty v. City of Chi., 754 F.3d 416, 420 (7th Cir.2014) ; FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir.2005). The tactic criticized in Perez was the movant's presentation of contradictory evidence, see 731 F.3d at 706 ; the court did not bless a relaxation of the rules such that judges should hunt for truffles buried in briefs, see United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). That said, when stripped of argument, plaintiff's factual assertions are readily ascertainable.

I disregard arguments raised in the Local Rule 56.1 statements, and I consider defendant's facts admitted, unless plaintiff controverted the fact with citation to supporting material. Plaintiff's denial of facts as outside plaintiff's personal knowledge, e.g., [96] ¶ 14, is not proper—plaintiff's lack of personal knowledge does not mean the fact is not true. The upshot is that most of plaintiff's rhetoric in his 56.1 statements is ignored. The material facts are set forth below.

A. Brown's Use of “Nigger” in the Classroom

In October 2011, Brown taught sixth-grade writing and social studies at Philip Murray Language Academy. [96] ¶ 4. Most of his students were African–American, and they ranged in age from eleven to thirteen years old. Id. ¶ 17. During class, Brown intercepted a note being passed between students. Id. ¶ 18. Brown no longer recalls much about the note (which student was passing it, what it said, who it was about), but does recall that it was a rap song with derogatory words, including the word “nigger.” Id. ¶ 18; [87–1] at 17 (Brown deposition, pp. 61–63). Although he lacks any recall about the details, Brown thinks the note was part of “a bullying situation.” [87–1] at 19 (Brown dep., pp. 71–72). Brown read some portion of the note aloud to the class, but stopped when he was told that the note was directed at another student. Id. at 17–18 (Brown dep., pp. 64–65).

Some of the students wanted Brown to read more of the note, and Brown said he did not want to read things that were morally offensive. Id. at 18 (Brown dep., p. 65, ll. 16–21). Many of the students chimed in and said they wanted Brown to tell them what words were the ones he didn't want to say. Id. (Brown dep., p. 67–68).² Brown said the word “nigger” and told his students that they should trust him; he was using the word in the context of a teacher. [96] ¶ 20. Brown may have referenced the fact that he was not African–American, see [87–1] at 18 (Brown dep., p. 66, ll. 7–8), and then engaged the students in a discussion regarding the use of the word, [96] ¶ 20. Brown doesn't recall much about the discussion. [87–1] at 18 (Brown dep., p. 68, l. 7).

Brown asked his students to “explain ... why blacks can call each other a [nigger or N-word] and not get mad, but when whites like me do it, blacks get angry.” [96] ¶ 21; [87–1] at 20 (Brown dep., pp. 75–76).³ Brown also asked his students if they “ever thought about why blacks are killed in movies first.” [96–1] ¶ 21; [87–1] at 20 (Brown dep., p. 76). At some point, the discussion devolved into students using racially derogatory language about Hispanic and Muslim cab drivers, and Brown returned to his planned grammar lesson. [87–1] at 21 (Brown dep., pp. 78–79). This discussion of race and derogatory language was unplanned, and lasted forty minutes of the scheduled one-hour lesson. [96] ¶ 21. Brown was the first person to say the word “nigger” in class, and no student said the word until Brown had said it. Id. ¶ 22.

Principal Mason walked into the classroom and heard Brown use the word in mid-sentence—Mason didn't know about a note that had been passed between students.

[87–10] at 2; [96] ¶ 24. Mason stepped out of the classroom and returned about five minutes later; he observed some of Brown's discussion of race with his students. [87–10] at 2; [96] ¶¶ 24, 26. Mason thought Brown's use of the word was very strange, offensive, and shocking to hear. [96] ¶ 26. (Mason was not so shocked as to interrupt the class, but he did immediately think the matter required formal discipline. [87–2] at 27 (Mason dep., pp. 102–103).) The next day, Mason asked some of Brown's students about the use of the word in class, and one student said that Brown brought up the word “out of the blue” and further discussed the problem of bullying. [96] ¶ 28.⁴ Mason did not believe any student suffered psychological or physical harm or injury. [104] ¶ 13. Brown did not intend to verbally abuse anyone, nor did any student feel verbally abused by Brown. Id. ¶¶ 14–15.

B. The Board's Disciplinary Process

The Board's Employee Discipline and Due Process Policy described the conduct that exposed a teacher to discipline. The policy prohibited the following (among other things): using verbally abusive language to or in front of students (Section 3–3); violating School rules, Board rules, policies or procedures that result in behaviors that disrupt the orderly educational process in the classroom, in the school, and may occur on or off the school grounds or assigned work location (Section 3–17); using racial, cultural, ethnic, or religious epithets, or threatening language (Section 4–2); violating School rules, Board rules, policies or procedures that result in behaviors that seriously disrupt the orderly educational process in the classroom, in the school, and may occur on or off the school grounds or assigned work location (Section 4–26) (emphasis added to distinguish 4–26 from 3–17);⁵ and any cruel, immoral, negligent, or criminal conduct or communication to a student, that causes psychological or physical harm or injury to a student (Section 5–9).[96] ¶ 9.

Disciplinary actions were based on various factors, including: (1) the seriousness of the offense; (2) the number of times it occurred; (3) prior acts of misconduct;⁶ (4) the length of time between infractions; (5) the attitude and cooperation of the employee; (6) the employee's work history; and (7) the totality of the circumstances. Id. ¶¶ 8–10. Brown was aware of the Board's policy and that it applied to him. Id. ¶ 11.

Brown was issued a notice of a pre-discipline hearing resulting from his use of the word “nigger” in front of his students. Id. ¶ 50. Brown was cited for violating Sections 3–3 and 3–17 of the discipline policy. Id. The notice advised him that his use of the word formed the factual basis of the disciplinary charges against him. Id. Brown was never charged with violating Section 4–2 (using racial epithets), but was found to have violated Section 3–3 (using verbally abusive language to or in front of students). Id. ¶¶ 52–53; [104] ¶ 1. The Section 3–17 charge was dropped at this stage of the disciplinary process. [104] ¶ 4.

Principal Mason issued a five-day suspension against Brown; on appeal, the Board concluded that a suspension of five days was appropriate for Brown's use of the word on October 4, 2011, and it entered a substantiated finding of misconduct under Sections 3–3 and 3–17 of the discipline policy. [96] ¶¶ 54, 57.

C. Other Uses of the Word in the Chicago Public Schools

The Board says the word “nigger” cannot be used at any time for any reason in any classroom in the Chicago Public Schools. [87–4] at 19 (Krieger dep., p. 71, ll. 17–21). According to Brown, earlier in his career at CPS (before he taught at Murray), he had...