In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 15Ȭ1857ȱ ȱ

LINCOLN BROWN,

PlaintiffȬAppellant,

v.

CHICAGO BOARD OF EDUCATION,

DefendantȬAppellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 1112 — Manish S. Shah, Judge.

____________________

ARGUED FEBRUARY 23, 2016 — DECIDED JUNE 2, 2016

____________________

Before WOOD, Chief Judge, and SYKES and HAMILTON, CirȬ

cuit Judges.

WOOD, Chief Judge. Justice Scalia once said that he wished

all federal judges were given a stamp that read “stupid but

constitutional.” See Jennifer Senior, In Conversation: Antonin

Scalia, NEW YORKMAGAZINE,Oct. 6, 2013. As he was implying,

not everything that is undesirable, annoying, or even harmful

amounts to a violation of the law, much less a constitutional

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problem. Today’s case provides another illustration of that

fact.

The Chicago Board of Education has a written policy that

forbids teachers from using racial epithets in front of students,

no matter what the purpose. Lincoln Brown, a sixth grade

teacher at Murray Language Academy, a Chicago Public

School, caught his students passing a note in class. The note

contained, among otherthings, music lyrics with the offensive

word “nigger.” Brown used this episode as an opportunity to

conduct what appears to have been a wellȬintentioned but

poorly executed discussion of why such words are hurtful

and must not be used. The school principal, Gregory Mason,

happened to observe the lesson. Brown was soon suspended

and brought this suit under 42 U.S.C. § 1983 against the Board

and various school personnel.

The district court dismissed a number of counts under

Federal Rule of Civil Procedure 12(b)(6), and Brown has not

pursued them further. But two of his theories of relief proȬ

ceeded to summary judgment: that his suspension violated

his First Amendment rights, and that the school’s policy was

so vague that his suspension violated the substantive due proȬ

cess component of the Fourteenth Amendment. The district

court granted summary judgment to the Board on both.

Brown appeals. Because Brown’s suspension did not violate

his constitutional rights, we affirm.

I

Brown’s First Amendment claim fails right out of the gate.

PublicȬemployee speech is subject to a special set of rules for

First Amendment purposes. Whether a public employee’s

speech is constitutionally protected depends on “whether the

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employee spoke as a citizen on a matter of public concern.”

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); see Pickering v. Bd.

of Educ., 391 U.S. 563 (1968). If the speaker is not wearing her

hat “as a citizen,” or if she is not speaking “on a matter of

public concern,” then the First Amendment does not protect

her. See, e.g., Garcetti, 547 U.S. at 421; Connick v. Myers, 461 U.S.

138 (1983).ȱȱ

In the case before us, Brown himself has emphasized that

he was speaking as a teacher—that is to say, as an employee—

not as a citizen. An employee does not speak as a citizen when

he “make[s] statements pursuant to [his] official duties.” GarȬ

cetti, 547 U.S. at 421. The question remains whether the GarȬ

cetti rule applies in the same way to “a case involving speech

related to scholarship or teaching.” Id. at 425. The Supreme

Court had no need to address that issue, and so left it for anȬ

other day.ȱȱ

This is not our first opportunity, however, in which to conȬ

front that question. See Mayer v. Monroe Cnty. Cmty. Sch. Corp.,

474 F.3d 477 (7th Cir. 2007). In Mayer, we concluded that a

teacher’s inȬclassroom speech is not the speech of a “citizen”

for First Amendment purposes. Id. at 479. The core of the

teacher’s job is to speak in the classroom on the subjects she is

expected to teach. This meant, we thought, that inȬclassroom

instruction necessarily constitutes “statements pursuant to

[the teacher’s] official duties.” Id. (internal quotation marks

omitted) (quoting Garcetti, 547 U.S. at 418).ȱȱ

Here, Brown gave his impromptu lesson on racial epithets

in the course of his regular grammar lesson to a sixth grade

class. His speech was therefore pursuant to his official duties.

That he deviated from the official curriculum does not change

this fact. See Mayer, 474 F.3d at 479 (expressing antiȬwar views

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during event is unprotected employee speech); Fairley v. AnȬ

drews, 578 F.3d 518, 523 (7th Cir. 2009) (posting improper noȬ

tices on work bulletin board would be unprotected employee

speech); Piggee v. Carl Sandburg Coll., 464 F.3d 667, 670–71 (7th

Cir. 2006) (expressing homophobic views at school outside of

class is unprotected employee speech). Moreover, maintainȬ

ing classroom order is one of Brown’s most basic duties as a

teacher. See Weintraub v. New York Bd. of Educ., 593 F.3d 196,

198 (2d Cir. 2010) (“core duties” of teachers include “mainȬ

taining class discipline”). To the extent that Brown’s discusȬ

sion of racial slurs was an attempt to quell student misbehavȬ

ior, it was still pursuant to his official duties.ȱȱ

Brown argues that we should ignore Mayer and instead

follow the Ninth Circuit by understanding the Supreme

Court’s reservation as a hint that Garcetti should not apply “in

the same manner to a case involving speech related to scholȬ

arship orteaching.” Garcetti, 547 U.S. at 425; see Demers v. AusȬ

tin, 746 F.3d 402, 411 (9th Cir. 2014). But Demers addressed

speech in a university setting, not a primary or secondary

school. It relied on the longȬstanding recognition that acaȬ

demic freedom in a university is “a special concern of the First

Amendment” because of the university’s unique role in parȬ

ticipating in and fostering a marketplace of ideas. See Demers,

746 F.3d at 411 (internal quotation marks omitted) (quoting

Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589,

603 (1967)). (Demers also did not comment on the extent to

which, at the university level, the institution may have sepaȬ

rate interests from those of its faculty.) In fact, in the primary

and secondary school context, the Ninth Circuit follows

Mayer’s approach. See Johnson v. Poway Unified Sch. Dist., 658

F.3d 954, 962–63 (9th Cir. 2011) (holding inȬclassroom instrucȬ

tion is pursuant to teacher’s official duties and unprotected

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employee speech). So do the Third and Sixth Circuits. EvansȬ

Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 624

F.3d 332 (6th Cir. 2010); Edwards v. Cal. Univ. of Pa., 156 F.3d

488, 491 (3d Cir. 1998) (Alito, J.) (preȬGarcetti). Only the Fourth

Circuit has adopted the position that Brown advocates, and it

did so without analysis. Lee v. York Cnty. Sch. Div., 484 F.3d

687, 694 n.11 (4th Cir. 2007). We see no reason to depart here

from our decision in Mayer. Brown made his comments as a

teacher, not a citizen, and so his suspension does not implicate

his First Amendment rights.

II

We must explain the facts in a little more detail to set the

stage for Brown’s due process claim. Following the incident in

question, Brown received a notice of a preȬdiscipline hearing.

This notice cited him for violating Sections 3Ȭ3 and 3Ȭ17 of the

Employee Discipline and Due Process Policy. Section 3Ȭ3 of

the Policy prohibits “[u]sing verbally abusive language to or

in front of students.” Section 3Ȭ17 prohibits “[v]iolating

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.” Because Section 3Ȭ17 inȬ

corporates violations of any other school rules, it sweeps in

Section 4Ȭ2, a rule that prohibits “using racial, cultural, ethnic,

or religious epithets, or threatening language.”ȱȱ

After the notice of preliminary hearing was issued, PrinciȬ

pal Mason dropped the charges based on Section 3Ȭ17. He susȬ

pended Brown for five days based solely on the Section 3Ȭ3

charge of use of verbally abusive language. Brown appealed

this decision to the Board. The Board reinstated the general

charge under Section 3Ȭ17 (a step it was authorized to take),

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entered a finding of misconduct under both Sections 3Ȭ3 and

3Ȭ17, and agreed that a fiveȬday suspension was appropriate.

Brown acknowledges that he had actual knowledge of the

Policy prior to this incident, and he has not raised any comȬ

plaint about procedural due process in this court. He asserts

only that these rules, taken together, are so vague that they

cannot be applied consistently with the Due Process Clause.

A statute, or in this case, a policy, is impermissibly vague

if it “fails to provide a person of ordinary intelligence fair noȬ

tice of what is prohibited.” FCC v. Fox Television Stations, Inc.,

132 S. Ct. 2307, 2317 (2012) (internal quotation marks omitted)

(quoting United States v. Williams, 553 U.S. 285, 304 (2008)).

Brown presents two arguments in support of his vagueness

theory. First, he says that the term “racial ... epithet” in SecȬ

tion 4Ȭ2 is too vague to provide fair notice that his language

was prohibited. He would prefer that the Board provide a list

of banned words. Basic knowledge of American culture is sufȬ

ficient to reject this argument. The word “nigger” is one of the

most reviled in American English. It is the archetypal racial

epithet. Moreover, Brown’s actions indicate that he knew this

to be the case—why else would he interrupt his planned

grammar lesson to lead a discussion on why the word is inȬ

appropriate?

The law buttresses this commonsensical observation. A

statute need not define every term to survive a vagueness

challenge. See United States Civil Serv. Comm’n v. Nat’l Ass’n of

Letter Carriers, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413

U.S. 601 (1973); see also United States v. Lanier, 520 U.S. 259,

271 (1997). Moreover, an employee code of conduct need not

be as clear as a criminal law. Greer v. Amesqua, 212 F.3d 358,

369 (7th Cir. 2000) (employee discipline code); see also Bethel

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Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (student

discipline code). The policy gave adequate warning that

Brown’s use of that word was prohibited.ȱȱ

Brown’s real frustration seems to be that the policy does

not distinguish between using the word in an educational

manner from its use as a slur directed toward a student or colȬ

league. While we understand his frustration, his only solace

is in Justice Scalia’s stamp. Regardless of what he believes the

Policy should be, the Policy in force forbids using such lanȬ

guage “in front of students,” rather than merely forbidding

using language directed toward students. His disagreement

with the Policy does not render it impermissibly vague.ȱȱ

Second, Brown argues that the Board had a past policy of

nonȬenforcement when the word was used educationally. He

contends that this means he lacked sufficient notice that the

Board would enforce the policy against him in this instance.

Brown points to several instances where students heard the

word with the school’s tacit approval: he taught Adventures of

Huckleberry Finn at another Chicago public school, his current

school organized a field trip to see Red Tails, a movie about

AfricanȬAmerican pilots in World War II, and the ParentȬ

Teacher Organization organized a showing of 42, a movie

about Jackie Robinson. The book and the two movies all use

the word in question (and do so repeatedly). Furthermore,

Principal Mason admits that he might have used the word

when asking students about what occurred in Brown’s classȬ

room—more indication that the Policy was not as strict as the

Board now claims it is.ȱȱ

The Supreme Court accepted an argument similar to

Brown’s in Fox Television Stations, Inc. In that case, the FCC

had a longȬstanding written policy that it would not fine TV

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networks for “isolated or fleeting” expletives or nudity.

132 S. Ct. at 2313. Then the Commission abruptly changed

course and, without announcing its new policy, fined two netȬ

works for brief nudity and swearing. Id. at 2317. Because the

Commission had not given advance notice of this change, the

Court held that it “failed to give” the networks “fair notice”

of the impermissible conduct. Id. at 2320.

But Fox does not save Brown’s case. Unlike the FCC, the

Board had no formal policy of not enforcing its Policy in cerȬ

tain circumstances. A handful of instances of past nonȬenȬ

forcement is a far cry from the FCC’s written, formal policy of

nonȬenforcement in Fox, and is insufficient to render the PolȬ

icy so vague that an ordinary person would not know what it

prohibits. See Libertarian Party of Ohio v. Husted, 751 F.3d 403,

424 (6th Cir. 2014) (holding statute not void for vagueness

where plaintiff “does not point to any nonȬenforcement policy

... from which [this enforcement action] marks an abrupt

change,” unlike in Fox). Brown’s surprise, along with a few

episodes of nonȬenforcement, does not support a substantive

due process claim.ȱȱ

III

Brown is indignant that he was suspended for using a raȬ

cial slur while attempting to teach his students why such lanȬ

guage is inappropriate. His frustration is understandable, but

it is not legally actionable. This is really a First Amendment

case, which gains nothing from the addition of the substantive

due process argument. And from a First Amendment standȬ

point, Garcetti dooms his position. The Board may have acted

in a shortȬsighted way when it suspended him for his effort to

educate the students about a sensitive and socially important

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issue, but it did not trample on his First Amendment rights.

We therefore AFFIRM the judgment of the district court.

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