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Brown v. Advocates for Academic Excellence In Education, Inc.

United States District Court, E.D. Louisiana

March 29, 2018


         SECTION: “N” - KDE - MBN



         Presently before the Court is Defendants' "Rule 12(b)(6) Motion to Dismiss" (Rec. Doc. 5). Defendants' motion is asserted in response to the First Amendment freedom of speech and Louisiana defamation claims that Plaintiff Ryan S. Brown ("Plaintiff") has asserted herein against Defendants Advocates for Academic Excellence in Education, Inc. d/b/a/ Benjamin Franklin High School ("Ben Franklin") and Principal Patrick Widhalm. Having carefully reviewed the parties' submissions, the record in this matter, and applicable law, the Court finds Plaintiff's First Amendment claims lack merit for essentially the reasons set forth in Defendants' memoranda. Accordingly, for the reasons stated herein, IT IS ORDERED that the motion is GRANTED such that Plaintiff's federal law claims are DISMISSED WITH PREJUDICE and Plaintiff's state law defamation claim is DISMISSED WITHOUT PREJUDICE.

         As detailed in Plaintiff's complaint and the parties' opposing memoranda, Plaintiff's claims arise from his allegedly involuntary termination, in May 2017, from employment as a fulltime substitute teacher at Ben Franklin. In short, Plaintiff contends that he was fired from his employment, in violation of his First Amendment right to free speech, because of remarks he made to a student ("Student A") regarding the propriety of his using words that Student A considered to be racist when spoken by persons of a differing race.

         In evaluating Plaintiff's claims, the Court first notes that Plaintiff's comments were made during the course of a "free period" authorized by Plaintiff, as the substitute teacher, when the absent Advanced Placement ("AP") American History teacher had not left a lesson plan, and all but four of the students wanted to study for a test scheduled to be taken the next day. Eventually, a conversation ensued amongst Plaintiff and the four non-studying students, who were sitting near Plaintiff at the front of the classroom. At first focused on sports and amateur athletes' efforts to avoid injury, the discussion ultimately yielded the comments for which Plaintiff contends the First Amendment insulates public employees from adverse employment actions.

         On this topic, the Fifth Circuit has explained:

Public employees do not surrender all their free speech rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen on matters of public concern. See, e.g. Pickering v. Bd. of Educ., [391 U.S. 563, 568 (1968)]; Connick v. Myers, [461 U.S. 138, 147 (1983)]; United States v. Nat'l Treasury Employees Union, [513 U.S. 454');">513 U.S. 454, 466 (1995)]. At the same time, “[t]his prospect of [First Amendment] protection . . . does not invest them with a right to perform their jobs however they see fit.” Garcetti v. Ceballos, [547 U.S. 410');">547 U.S. 410, 418 (2006)]. The relationship between the speaker's expressions and employment is a balancing test. A public employee's speech is protected by the First Amendment when the interests of the worker “as a citizen in commenting upon matters of public concern” outweigh the interests of the state “as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568[.]

Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 691-92 (5th Cir. 2007). Thus, "[a] government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations." Garcetti, 547 U.S. at 418. In other words, "[t]he question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Id. at 418.[1]

         In determining whether a public employee's statements enjoy the protections of the First Amendment, the Court first considers whether the statements constitute "speech on a matter of public concern." Connick, 461 U.S. at 146 (emphasis added). Matters of public concern are those that can fairly be characterized as "relating to any matter of political, social, or other concern to the community, " considering the "content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48. This query is necessary because "absent the most unusual circumstances, a federal court is not the proper forum in which to review the wisdom of a personnel decision" regarding an employee's statement upon topics "only of personal interest." Id. at 147 (emphasis added). The Court also must evaluate the role of the speaker, that is, whether he or she spoke as a "private citizen, " rather than a public employee making a statement pursuant to his or her official duties. Garcetti, 547 U.S. at 418-23. In the latter scenario, "employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421.

         If these two threshold queries yield affirmative responses, such that a plaintiff is found to have acted as a private citizen speaking on matters of public concern, the "possibility of a First Amendment claim arises, " and the Pickering balancing test referenced above is undertaken. Id. at 418. Hence, "[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employees to operate efficiently and effectively."Id. at 419. "The 'rights' of the [speaker, however, are] always tempered by a consideration of the rights of the audience and the public purpose serviced, or disserved, by his speech." Martin v. Parrish, 805 F.2d 583, 585 (5th Cir. 1986). Thus, for example, when it is students that are the audience, consideration is given to whether the educational setting is post-secondary, rather than at the high school (or lower) level, and whether the statements at issue are directed to a "captive audience." Id. at 584-86.

         Here, the Court assumes, for purposes of this motion, that Plaintiff's remarks are properly construed as having been made by a private citizen speaking on matters of public concern. Even so, the Court is compelled to conclude that, given the specific facts involved, Plaintiff's interests in speaking as he did are substantially outweighed by Defendants' interests in furthering efficient, orderly, and effective school operations by terminating Plaintiff's employment.

         As an initial matter, the Court notes that Plaintiff's comments were not shared with Student A outside of the school hours in a non-academic setting from which the student was free to leave, or simply ignore Plaintiff's remarks, without risking adverse consequences. Rather, Plaintiff's comments were made during the course of a regularly scheduled class period and inside a classroom (subject to Plaintiff's authority and control) where Student A was required to be. Furthermore, despite that academic setting, Plaintiff's comments were not made, for instance, as part of a communications, debate, or speech course expressly or tacitly approved by the school administration. They likewise were not the byproduct of a history lesson devoted to topics that reasonably could be expected to bring about a (properly respectful and sensitive) discussion about the evolution of race relations in the United States.[2] To the contrary, the verbal exchange in question, debating the propriety of Plaintiff's use of the "n word" during the course of an extraneous conversation, was the result of an unsolicited and gratuitous comment made by Plaintiff, not one of the students, in recounting an anecdote to Student A (and the other students within hearing distance) about a previous remark allegedly made by a well-known prep athlete.[3]

         Importantly, moreover, Plaintiff, as a full-time substitute teacher, was the very person entrusted by the school administration to provide a calm, controlled, and secure learning environment for the students in that class. When it became apparent (to anyone in the room or watching the video) that Student A was becoming increasingly upset and agitated by Plaintiff's remarks, however, Plaintiff failed to maintain classroom order and proper decorum. Nor did Plaintiff act as necessary to diffuse the increasingly tense situation. Even worse, Plaintiff actually escalated matters by persisting in his efforts - in the presence of the entire class - to convince Student A of the validity of Plaintiff's position, and the concomitant fallacy of Student A's differing opinion.[4] Indeed, the heated conversation did not end until "the incident reached a boiling point, "[5]and Student A, slamming down his desk, stormed out of the classroom.[6] Plaintiff soon followed, leaving the rest of the class unattended.

         Furthermore, the terminus of Plaintiff's commentary brought about by Student "A"'s departure from the classroom was not sufficient to conclude the matter and restore calm. Instead, the student video[7] taken of a portion of the interchange between Plaintiff and Student A was subject to widespread and repeated publication on the internet and numerous complaints by students, parents, and alumni were made. The event also necessitated an impromptu school assembly to address the matter, [8] ...

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