Interesting potential First Amendment case

[Volokh, Eugene]

        I'm not sure how the constitutional analysis would or should come
out here (and no lawsuit has been filed yet, and chances are that none will
be), but I thought it was interesting enough to pass along.

        Let me also pose a hypothetical; the article says that "The inquiry
-- which the district aims to complete within a week -- will, among other
things, consider whether the letter created an offensive and hostile
environment for the students."  Say that this happened at a *private*
school, and the private school chose *not* to punish the teacher for this.
Several similar letters were passed around by other teachers, and parents
and students ended up learning about this.  A student then sues under a
hostile educational environment theory, saying that "the letter[s] created
an offensive and hostile environment for the students."  Should such a claim
prevail, or would the First Amendment bar it?  (I realize that the
constitutional inquiry in this hypothetical, where the government would be
acting as sovereign, would be different from the inquiry when the government
is acting as employer.)


http://www.latimes.com/news/local/la-me-teacher23oct23.story

Teacher Put on Leave Over Letter About Black Students
Most misbehavior at Pasadena school is by African Americans, he says in
predicting low API scores. Inquiry on his actions is planned.
By Jose Cardenas
Times Staff Writer

October 23 2002

A Pasadena high school teacher has been placed on administrative leave for
disseminating a letter stating that, at his campus, most students who
misbehave and are low academic achievers are African American.

Scott Phelps, a 12-year science teacher at John Muir High School, . . . said
he was trying to predict that bad student behavior -- which, in this case,
he said applies to many in Muir's large African American population -- will
be responsible for the school's low Academic Performance Index scores next
year.

The letter was also meant as a counterattack to the bad rap he said teachers
in his district get from administrators about low student achievement.

"My intent was to get the district to stop blaming teachers or holding them
solely responsible for performance," he said. "Different ethnicities are
radically different. . . .  I'm saying the behaviors are radically
different, so we need to look at that. Nothing I said is false."

Phelps was put on administrative leave with pay and benefits, pending the
results of an internal investigation, said Erik Nasarenko, a Pasadena
Unified School District spokesman. . . .

The inquiry -- which the district aims to complete within a week -- will,
among other things, consider whether the letter created an offensive and
hostile environment for the students.

Phelps, a Caltech graduate and outspoken teacher, first posted the letter in
an Internet chat room where the school district is frequently criticized.

On Friday he also placed copies of it in his colleagues' boxes.

The somewhat rambling letter touches on several points.

* It states that this year the school's improvements in its API scores were
aided by two "good cohorts": the sophomore and senior classes.

* But then it warns that next year the school won't meet its goal because
two "bad cohorts" -- this year's freshmen and juniors -- will hold back the
scores.

* The reason why the two classes are bad cohorts, the letter says, is bad
behavior.

"But overwhelmingly," part of the letter reads, "the students whose behavior
makes the hallways deafening, who yell out for the teacher and demand
immediate attention in class, who cannot seem to stop chatting and are
fascinated by each other and relationships but not with academics, in short,
whose behavior saps the strength and energy of us that are at the front
lines, are African American." . . .

The letter also says many African American students, those whose parents are
involved with school, are well-behaved. It says that because Muir is almost
half African American, most of the badly behaved students are African
American.

The district acted after some teachers who received the letter complained,
Nasarenko said. . . .

"If you're an African American student in Mr. Phelps' class and you read
this, are [you] going to go up or down?" asked Bert Voorhees, a civil rights
attorney and past president of the NAACP's Pasadena chapter. "Mr. Phelps
contributes with his racism to some of the problems he says he wants to
tackle."
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