Commentary

Teacher Unconstitutionally Fired for Facebook Post Rejecting Concept of ‘White Privilege’

By Hans Bader | August 6, 2020 | 5:18pm EDT
A sculpture of a gavel appears outside the Supreme Court of Ohio. (Photo credit: Raymond Boyd/Getty Images)
A sculpture of a gavel appears outside the Supreme Court of Ohio. (Photo credit: Raymond Boyd/Getty Images)

An Illinois high school teacher was fired on July 16 for a Facebook post rejecting the idea of "white privilege." That violated the First Amendment, even if some people viewed her Facebook post as racially inflammatory.

Speech doesn't become punishable just because it offends members of minority groups. For example, in Thompson v. Board of Education of Chicago (1989), a court ruled that a teacher’s remarks to a newspaper about problems in the Chicago school system (such as gang activity) were constitutionally protected, even though "individuals in the community had expressed outrage over the remarks," and viewed them "as racist and inflammatory."

As Tom Parker notes:

"Jeanne Hedgepeth, a Palatine High School, Illinois, social studies teacher, has been fired over one of her social media posts after the Township High School District 211 board members voted 5-2 to terminate her employment.

'I am about facts, truth-seeking and love,' Hedgepeth wrote in the Facebook post that led to her termination. 'I will speak on any topic I choose because I live in a free country. I find the term ‘white privilege’ as racist as the ‘N’ word. You have not walked in my shoes either so do not make assumptions about me and my so called privilege. You think America is racist? Then you’ve been hoodwinked by the white liberal establishment and race baiters like Jesse Jackson and Al Sharpton. Travel the world and go see that every nation has racism and some more than others but few make efforts such as we do to mitigate or eliminate it.'

She also recommended the work of economist Thomas Sowell, political commentator and activist Candace Owens, and author and radio host Larry Elder.

Additionally, Hedgepeth argued that there is a 'deeper problem than racism.' She finished by recommending that the black community should stop believing 'Democrats, mainstream media and intellectuals in ivory towers.'"

There is no doubt that she was fired for her speech by Palatine-Schaumburg High School District 211, judging from the news story about her firing in the Daily Herald.

"The statements in the post do not reflect the values or principles of District 211," the district said in a statement at the time. "We are truly sorry for any harm or disrespect that this may have caused."

But schools are not entitled to punish speech about political and social issues just because they think it violates their "values or principles." For example, a college's discipline of a fraternity was overturned by a court on First Amendment grounds, even though the fraternity's racially insensitive skit was at odds with the university's "mission statement" of teaching "values of equal opportunity and equal treatment" and "respect for diversity." (See Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1993)).

Similarly, a white professor's racially-charged anti-immigration emails were ruled protected speech by an appeals court, even though they offended Hispanic college staff, who viewed the emails as racist. (See Rodriguez v. Maricopa Community College District (2010)).

High schools can punish speech by their employees that is seriously disruptive or prevents them from carrying out their duties. But they can't punish an employee just for saying something that is insensitive, or angers some in the community.

The teacher also can't be punished because she disapprovingly compared "white privilege" to the "n-word," viewing both as racist. She didn't even say the word "n****r," she just referred to it as the "n-word." And even using the n-word in full has been held to be protected speech by instructors, when they are discussing the word, not aiming it at a black person. For example, a federal appeals court ruled that an instructor could say the n-word in full while discussing the historical oppression of black people. (See Hardy v. Jefferson Community College (2001)).

The teacher, Jeanne Hedgepeth, views the idea that whites are privileged ("white privilege") as discriminatory against whites. Whether one agrees with her or not, she is alleging reverse discrimination. And speech alleging reverse discrimination is speech protected by the First Amendment, because it addresses a matter of public concern.

For example, a prison guard's angry diatribe against affirmative action was ruled protected speech by a California state appeals court. (See California Department of Corrections v. State Personnel Board (1997)).

Similarly, a federal appeals court ruled that the First Amendment protected an "assistant fire chief in charge of personnel" from being fired for expressing views at odds with his city's own "policy on affirmative action" to a minority-advocacy group. (See Meyers v. City of Cincinnati (1991)).

Even if one disagrees with Hedgepeth about whether the concept of "white privilege" discriminates against whites by deeming all whites privileged, it doesn't mean she can be fired. The First Amendment protects even misguided views and faulty assumptions. As judges have explained, “erroneous statements of public concern will be protected unless they are shown to have interfered with the employee’s performance or the regular operation of his governmental agency." (See Brasslet v. Cota (1985)).

Speech complaining of reverse discrimination can be protected by the First Amendment or the civil-rights laws even if the "discrimination" complained of turns out to be legal. For example, a court ruled that a worker was wrongly fired for complaining about his employer's affirmative-action plan, even though the court concluded that the affirmative action plan was legal. (See Sisco v. J.S. Alberici Const. Co. (1981)).

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.

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