June 1996


               Combating Bigotry in Law Enforcement

      By Edwin J. DeLattre, Ph.D. and Daniel L. Schofield, S.J.D.

________________

Dr. Delattre is dean of the School of Education and professor of
philosophy in the College of Arts and Science at Boston
University. Special Agent Schofield is chief of the Legal
Instruction Unit at the FBI Academy.
________________

(Police leaders are obligated to prohibit their employees from
using bigoted expressions in speech and conduct.)


It is not unusual for police and law enforcement leaders to
believe that first amendment rights of sworn and civilian
personnel prevent firm departmental policies and sanctions
against bigoted speech and expressive conduct. Police executives
understand that ethnic slurs, racial epithets, sexist insults,
and other expressions of bigotry are morally indefensible and
have no rightful place in public service. But, along with elected
officials, they may feel legally constrained from implementing
policies designed to prevent and root out bigoted speech and
behavior.

In civilized nations, freedom of thought is sacred. Human dignity
is grounded in respect for equality,liberty, and the equal right
of individuals to think as they see fit. So profound is the right
to freedom of thought that no one may be punished legitimately
for what they think, no matter how benighted, wrong, or  
irresponsible their thoughts may be. Freedom of thought is the
most basic of all obstacles to governmental tyranny.

The right to freedom of thought is unconditional. And, because
words and actions normally give expression to what  individuals
think, traditions of civility embrace great respect for freedom
of expression. However, neither the U.S. Constitution nor first
amendment case law guarantees unconditional freedom of speech and
nonverbal expression.

To what extent, then, do law enforcement employees enjoy first
amendment protection for ethnic slurs, racial epithets, demeaning
sexist insults, and other bigoted speech and nonverbal conduct?
The U.S. Supreme Court never has answered this question directly,
but the Court did reaffirm recently the broad latitude allowed
public employers to prohibit employees from using "...offensive
utterances to members of the public, or to the people with whom
they work"1 that interfere with the effective accomplishment of
the governmental employer's mission. A fair conclusion from the
results reached by those lower courts that have addressed the
issue is that the first amendment provides little, if any,
protection for the bigoted speech of law enforcement employees.

This article begins with a discussion of the analytical
frame-work for determining first amendment protection for public
employees. Next, it reviews court decisions involving law
enforcement employees who claim first amendment protection for
speech or expressive conduct that can fairly be characterized as
bigoted. Finally, the article discusses the ethical duty to
combat bigotry in law enforcement organizations.2

The Analytical Framework

The threshold question for determining whether a particular
expression by an employee is protected by the first amendment is
whether it may be "...fairly characterized as constituting speech
on a matter of public concern."3 Courts examine the content,
form, and context of employee speech to determine whether it
relates to any matter of political, social, or other legitimate
concern to the community.

An employee's expressive activity that fails to satisfy this
so-called public concern test is generally not protected by the
first amendment.4 Examples of an employee's speech that courts
have ruled not to be a matter of public concern include:

1) A police chief's personal opinion of another person because
the purpose for the speech was to advance his private interests;5

2) A college professor's incessant use of profanity in the
classroom because his intent was merely to exhibit his attitude
toward his students;6 and 

3) The locker room speech of a college basketball coach in which
he used the word "nigger" because his purpose was to motivate his
players rather than to impart any socially or politically
relevant message.7

Conversely, a college professor's derogatory comments about Jews
that were characterized as "hateful and repugnant" were held to
be speech on a matter of public concern. The court found that
these comments were made in the context of the professor's
criticism of the public school curriculum for reflecting bias
against minorities and a history of black oppression that the
court said are issues "...suffused with social and political
hues."8 In contrast to the locker room speech of the basketball
coach, the professor's derogatory comments arguably advanced
viewpoints, however repugnant, the purpose of which was to
influence or inform public debate.9

Once the public concern requirement is satisfied, courts then
employ a balancing of interests test to determine whether the
value of the speech outweighs legitimate interests of the
governmental employer. The closer the expressive activity
reflects on matters of public concern, the more conclusive the
employer's evidence must be to show that the speech is likely to
disrupt legitimate governmental interests and purposes. However,
employee speech on a matter of public concern has no first
amendment  protection if under this balancing of interests
analysis its potential disruptiveness to governmental interests
outweighs its value to the public interest.

For example, in the case involving the college professor who made
derogatory comments about Jews that were deemed a matter of
public concern, the U.S. Court of Appeals for the Second Circuit
nonetheless ruled that the speech was unprotected under the
balancing test, based on the university's showing that the
comments would likely disrupt university operations.10 The court
concluded that the first amendment "...permits a government
employer to fire an employee for speaking on a matter of public
concern if 1) the employer's prediction of disruption is
reasonable; 2) the potential disruptiveness is enough to outweigh
the value of the speech; and 3) the employer took action against
the employee based on this disruption and not in retaliation for
the speech."11

The Public Concern Test

In assessing the content, form, and context of an employee's
speech to determine whether it relates to a matter of public
concern, courts tend to focus on the following three closely
related factors: 1) The communicative purpose or motivation of
the speaker, 2) whether the speech merely reflects a personal
bias or grievance of the speaker, and 3) whether the expression
is directed to the public. Courts employing these factors
generally conclude that bigoted speech by law enforcement
employees fails the public concern test.

For example, in Pruitt v. Howard County Sheriff's Department,12
the Maryland Court of Special Appeals concluded that "Nazi-like"
comments and behavior by officers were not a matter of public
concern in the technical sense that they could not "be fairly
characterized as constituting speech on a matter of public
concern." The conduct ranged from parodies of "Hogan's Heroes,"
exaggerated German accents, and military mannerisms, such as the
Hitler hand salute and heel clicks, to the use of terms like
"achtung" and "sieg heil." The conduct was intended solely for
the private amusement of other department and courthouse
employees.

In ruling the officers' dismissal did not violate the first
amendment, the court concluded that the officers' conduct merely
reflected a personal bias, was bereft of any political content,
and was intended for amusement rather than for debate on any
matter of public concern.13 The court accepted the general
propo-sition that a law enforcement employee's "resort to
epithets and personal abuse is not in any proper sense
communication of information or opinion safeguarded by the
Constitution."14 The court also distinguished this private parody
in front of co-workers from a public performance containing
satire or humor and suggested the latter would more likely be
deemed a matter of public concern.15

In Tindle v. Caudell,16 the U.S. Court of Appeals for the Eighth
Circuit concluded that a costume worn by an officer at a
Halloween party at the Fraternal Order of Police lodge did not
constitute speech on any matter of legitimate public concern. The
officer attended the party dressed in blackface, wearing bib
overalls and a black, curly wig, and carrying a watermelon. The
court noted that wearing a particular outfit or costume is
nonverbal conduct that is protected as speech if it is intended
to convey a message likely to be understood by those who view it.

The court reasoned that the officer's admitted motivation for
wearing the costume, i.e., to have a good time and entertain
other   party guests, lessened the costume's expressive
attributes because "[a]musing other guests at a private party
with no showing of any intended message is not speech on a matter
of public concern."17 The court also agreed with Pruitt that an
officer's artistic expression of satire or humor before a public
audience would more likely be deemed speech on a matter of public
concern.

In Hawkins v. Department of Public Safety,18 the Maryland Court
of Appeals ruled that a prison guard's abusive words and conduct
directed toward a private citizen while the guard was off duty,
away from the prison, and out of uniform failed the test of
speech on a matter of public concern. After arguing with a bank
teller over a check, the guard proclaimed loudly:  "Hitler should
have gotten rid of all you Jews." The court ruled the guard's
words were not speech on a matter of public concern, because he
was not attempting to stimulate a dialogue on the Holocaust but
instead giving vent to his anger and using speech as a weapon to
abuse the teller who had inconvenienced him.19

In Lawrenz v. James,20 a corrections officer, while attending a
barbecue on Martin Luther King Day wearing a t-shirt adorned with
a swastika and the words "White Power," discussed with other
offi-cers their shared perception of managerial bias against
white offi-cers and the department's affirmative action program.
A federal district court ruled the officer's "...beliefs relating
to the swastika and the strength or power of white people are
purely matters of personal interest, not matters of public
concern."21

The court acknowledged that the officer's speech relating to the
alleged discriminatory treatment against white officers posed a
harder question. Still, the court concluded that it was not
speech on a matter of public concern because the officer's
motivation for discussing with his co-workers the alleged race
discrimination was not to bring the issue to the public's
attention but was merely an airing of a personal employee
grievance, and the statements were not made publicly or intended
for the public.22

The Balancing Process

The cases discussed in the preceding section suggest courts will
find most bigoted expression by employees not to be speech on a
matter of public concern. However, even in those instances where
employee speech is considered a matter of public concern, that
speech is protected by the first amendment only if a court also
determines that its value to the public interest outweighs its
adverse effects on legitimate law enforcement interests.

In this balancing process, courts do not require a demonstration
of actual disruption of law enforcement caused by the employee's
speech; instead, courts afford substantial weight to the
employer's reasonable prediction of disruption.23 The cases
discussed below illustrate judicial acceptance of the connections
between an employee's bigoted expression and disruption of law
enforcement and the related need for departmental regulations
prohibiting bigoted expressions that undermine law enforcement
efficiency and effectiveness.24

In Tindle, the court reasoned that even if the officer's
offensive appearance at the Halloween party had satisfied the
public concern requirement, the interests of the police
department outweighed the value of the officer's expressive
conduct. First, the need for harmony and close working
relationships in a police department is of great importance, and
the undisputed evidence showed that some African-American members
of the department felt belittled and ridiculed by the costume.
Second, management had a reasonable basis for believing the
officer's conduct had the clear potential to disrupt working
relationships in the department. Third, the primary basis for the
department's imposition of discipline was the potential internal
disruption within the police department, not negative publicity
or repercussions in the community resulting from the officer's
behavior.25

The court in Tindle also rejected the officer's constitutional
challenge to the underlying departmental regulations that
purported to "...prohibit a police officer from engaging in
conduct that could result in justified criticism of the officer
or the department and from ridiculing, mocking, taunting, or
deriding any person." The court stated that because "...police
departments function as paramilitary organizations, their members
may be subject to stringent rules and regulations that could not
apply to other government agencies."26

The court found the regulations rationally related to the
department's legitimate interest in developing discipline, esprit
de corps, and uniformity within its ranks. Moreover, while
conceding that the regulations did not precisely define what
would constitute impermissible conduct, the court believed they
gave officers adequate notice that high standards of conduct are
required.27

In Lawrenz, the court concluded that even if the officer's
wearing of the "White Power" t-shirt with the swastika was deemed
to be speech on a matter of public concern, the balancing process
would strongly favor departmental interests for a number of
reasons. First, management had reasonable grounds for believing
the incident would have a negative effect on prison safety and
operations. Second, the first amendment does not require law  
enforcement agencies to wait until racial tensions erupt before
taking action. Third, employees in law enforcement-type
organizations who engage in expressions only tangentially related
to speech on a matter of public concern are entitled to less
protection than in other contexts.28

The Ethical Duty to Combat Bigotry

Fidelity to the public trust in law enforcement and living up to
the oath to uphold and defend the Constitution are impossible
without respect for justice. Justice, including respect for human
dignity and equal standing under the law, is simply antithetical
to bigotry. Because the achievement of justice is the highest
ideal and purpose of government itself, courts do not provide any
blanket protection for bigoted speech and expressive action by
law enforcement personnel.

The mission of police and law enforcement agencies is severely
undermined and can be utterly ruined wherever sworn and civilian
personnel are bigoted against members of the public or against
each other. Sworn and civilian personnel, like everyone else,
have a right to think what they will, but they do not have any
comparable right to give expression to bigotry, or to do so
without sanction.

Recruitment, training, supervision, and procedures for
accountability in law enforcement should be unambiguous in such
matters. Where background investigations disclose habits of
bigoted speech, as in ethnic slurs, racial epithets, gender
insults, and the like, those habits of conduct may be entirely
sufficient to disqualify applicants. Bad habits are hard to
change, and recruitment should not treat habits that are inimical
to responsible policing as if they were unimportant in any way.

Experienced police administrators know that it is harder to rid a
department of employees who are unfit for public service than it
is to avoid hiring them initially. The first line of defense
against bigotry is in hiring policies and practices and in
appropriately focused background investigations.

In training, supervision, and overall accountability, departments
are obligated to explain why bigotry is wrong and why the
department will not tolerate bigoted speech or expression. The
right to freedom of thought should be emphasized and, with it,
the duty of respect for human dignity and for justice in everyday
life and in the performance of duty. 

Police officers should understand that the right to freedom of
thought protects benighted thinking, but does not make it right
and does not protect speech and behavior that give voice to it.
Such instruction is not "sensitivity training." It is a matter of
teaching without equivocation the duties of justice in speech and
action that are incumbent on police, and of teaching what an oath
to uphold the Constitution means. Good instruction necessarily
includes close attention to the words of the preamble to the 
Constitution.

Likewise, police officers should learn that no one is exempt, by
virtue of any inherited quality, from being prejudiced. Bigotry
is a human failing, not a failing to which only some people by
reason of birth are susceptible. The bigot, as law enforcement
personnel should understand, is in a profoundly consequential way
a moral failure.

No matter what color, ethnicity, religion, or gender they are, if
individuals are prejudiced against others because of color,
ethnicity, religion, or gender, they are failures in their
understanding of humanity. The inability to grasp this marks not
only the ways in which the bigot is contemptible but also all the
ways in which the bigot is pitiable.

Contempt for the person whose bigotry is inevitably a form of
self-debasement tends, therefore, to be mingled with a disdainful
pity that the person should be so divorced from a trustworthy
perception of  reality about human beings, human feelings, and
human life. Police officers cannot serve the public interest
faithfully, cannot enforce the law justly, if they are so
divorced from reality that they speak and act with bigoted
contempt for either fellow employees or members of the public
they serve.

The duty to combat bigotry in policing and law enforcement is
among the most important obligations in the tradition of higher
intellectual and moral standards for public servants than for the
general public. Law enforcement leaders who have mistakenly
believed themselves to be constrained by the first amendment from
taking action against bigoted expression should recognize that
they have very considerable authority to bring to bear against
bigotry.

Failure to exercise that authority in recruitment, training,
supervision, and policies of accountability threatens to place
the police, law enforcement agencies, and the public in jeopardy
time and again from the bigots of the world. Expressions of
bigotry by police poison public confidence in the entire criminal
justice system and reduce criminal trials to tests of police
credibility.


Bigoted speech and expression are wrong by their nature and
destructive in their consequences. They are, in a word, a moral
outrage. No excuse can be given for laxity in the efforts of
police leaders and their agencies to limit, as fully as the law
allows, the continuing presence of bigoted expression in law
enforcement.

________________
Endnotes:

1 Waters v. Churchill, 114 S.Ct. 1878, 1886 (1994).

2 For a comprehensive discussion of ethics in policing, see Edwin
J. Delattre, Character and Cops:  Ethics in Policing, 2d ed.
(Washington, DC: American Enterprise Institute for Public Policy
Research, 1994).

3 Connick v. Myers, 103 S.Ct. 1684, 1689 (1983).

4 However, several courts have found the public concern test
inapplicable to speech that occurs away from the job and is not
about the job.  See, e.g., Flanagan v. Munger, 890 F.2d 1557
(10th Cir. 1989); Berger v. Battaglia, 779 F.2d 992 (4th Cir.
1985); and Hawkins v. Public Safety Dept, 602 A.2d 712 (Md.
1992)(Bell, dissenting).

5 Linhart v. Glatfelter, 771 F.2d 1004 (7th Cir. 1985).

6 Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986).

7 Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir.
1995).

8 Jeffries v. Harleston, 21 F.3d 1238, 1245 (2d Cir. 1238 1994),
rev'd on other grounds, 52 F.3d 9, cert. denied, 116 S.Ct. 173
(1995).

9 In Skruggs v. Keen, 900 F.Supp. 821 (W.D.Va.1995), the court
said that a teacher's negative comments about interracial dating
and racial discrimination during a private conversation with
students are a matter of public concern, even if potentially
insulting to a certain group. However, the court suggests that a
racial slur during such a conversation would not be protected: 
"Indeed, if the racial slur were used, it would arguably not be
protected.  Even in cases where the government regulates speech
as a sovereign, speech containing 'fighting words' is not given
protection."  Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).  

10 Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995), cert. denied,
116 S.Ct. 173 (1995).

11 Id. at 13.


12 623 A.2d 696 (Md. App. 1993), cert. denied, 114 S.Ct. 1059
(1994).

13 Id. at 701, 702.  The U.S. Court of Appeals for the Fourth
Circuit, in an unpublished disposition, reported at 76 F.3d 374
(1996), held that the officers had no recourse under Title VII of
the 1964 Civil Rights Act or other federal civil rights laws and
dismissed their claim of discrimination.

14 Id. at 702.

15 Id. 

16 56 F.3d 966 (8th Cir. 1995).

17 Id. at 970.

18 602 A.2d 712 (Md. 1992).

19 Id. at 717-18.

20 852 F.Supp. 986 (M.D. Fla. 1994), aff'd, 46 F.3d 70 (11th Cir.
1995).

21 Id. at 992. In West Baton Rouge Parish v. Westside Aero, 572
So.2d 1127 (La.App.1 Cir. 1990), the court held that racially and
sexually offensive cartoons created and circulated by a police
officer did not involve matters of public concern because they
pertained to personal disputes and grievances and were not
calculated to disclose misconduct.

22 Id.

23 See, e.g., Jeffries v. Harleston, 52 F.3d at 13.

24 In Rankin v. McPerson, 107 S.Ct. 2891 (1987), the Court
suggests the nature of an employee's duties in a law enforcement
organization is relevant to the balancing process and that an
employee whose duties are purely clerical with minimal
involvement in law enforcement may have slightly greater first
amendment protection to engage in controversial speech.

25 56 F.3d at 971-72.

26 Id. at 973

27 Id.

28 852 F.Supp. at 993-94.  See also, Bayges v. Southeastern
Pennsylvania Transportation Authority, 1992 WL 392596 (E.D.Pa.
1992), aff'd, 5 F.3d 1488 (3d Cir. 1993)(employee who made
racially derogatory remarks that were overheard by reason of an
inadvertently keyed radio transmitter could lawfully be
disciplined); and Griggs v. No. Maine Fire Dist., 576 N.E.2d 1082
(Ill. 1991)(an employee's vulgar and ethnically derogatory speech
occurring during a private conversation at the station was not
protected speech).

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