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Buchanan v. Alexander, No. 18-30148 (5th Cir. March 22, 2019)

On March 22, 2019, the Fifth Circuit issued a decision finding that professor Teresa Buchanan’s termination for her classroom use of profanity and discussion of sex did not violate her First Amendment right to freedom of speech. While the court acknowledged that certain classroom speech is protected by the First Amendment, the court held that Buchanan’s speech was not protected as it did not serve an academic purpose.

Professor Buchanan was a highly productive scholar and teacher at Louisiana State University (“LSU”), who was on the verge of promotion to full professor when she was summarily suspended by her dean, pending an investigation of “serious concerns” that had been raised about her “inappropriate statements” to her students. In May 2014, LSU’s Office of Human Resource Management (“OHRM”) found Buchanan guilty of sexual harassment based solely on her occasional use of profanity and sexually explicit language with her students. Buchanan’s dean recommended her dismissal, and has stated that he did not condone “any practices where sexual language and profanity are used educating students.” Subsequently, a faculty hearing committee recommended unanimously against dismissal of Professor Buchanan, and instead recommended that she be censured. Despite this recommendation, the university president recommended Professor Buchanan’s dismissal to LSU’s Board of Supervisors, which terminated her in June of 2015.

Professor Buchanan filed suit in the United States District Court for the Middle District of Louisiana, and argued that the termination violated her First Amendment right to free speech, that LSU’s sexual harassment policy violated her First Amendment rights because it was vague and overbroad both facially and as applied in her case, and that her due process rights were violated. The District Court ruled against Professor Buchanan, finding that LSU’s sexual harassment policy was constitutional, and that she was afforded procedural and substantive due process. Professor Buchanan appealed the court’s ruling that the sexual harassment policy, both facially and as applied, was constitutional, and the AAUP filed an amicus brief in support of her appeal.

In its ruling the Court of Appeals explained the overall standard applied to speech in college classrooms.

The Supreme Court has established that academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Accordingly, “classroom discussion is protected activity.” However, even this protection has limits: Students, teachers, and professors are not permitted to say anything and everything simply because the words are uttered in the classroom context.

In order to receive First Amendment protection, the court held that classroom speech must involve a “matter of public concern,” but that “in the college classroom context, speech that does not serve an academic purpose is not of public concern.” In ruling that Buchanan’s speech was not protected, the court found “that Dr. Buchanan’s use of profanity and discussion of her sex life and the sex lives of her students was not related to the subject matter or purpose of training Pre-K–Third grade teachers.” Since the court found that Buchanan’s speech was not protected, it held that her termination did not violate the First Amendment. The court also dismissed Buchanan’s claims that the harassment policy was unconstitutional, as written, as it found that Buchanan had not sued to proper party for this claim. Therefore, the court did not address the substantive arguments regarding the constitutionality of the policy.

The AAUP filed an amicus brief, written primarily by Risa Lieberwitz with contributions from Aaron Nisenson and Nancy Long, which argues that the termination of Professor Teresa Buchanan, for making statements in the classroom that the university improperly characterized as sexual harassment, violated her academic freedom. The brief explains that sexual harassment policies, particularly those focused on speech, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on free speech and academic freedom. In public universities, these policies must meet constitutional standards under the First Amendment. AAUP argues that the university’s policies, and their application to the facts, failed this test and thus violated Professor Buchanan’s academic freedom.

The AAUP amicus brief emphasizes the importance of faculty being able to use controversial language and ideas to challenge students in the classroom.

The use of provocative ideas and language to engage students, and to enliven the learning process, is well within the scope of academic freedom protected by the First Amendment. Many things a professor says to his or her students may “offend” or even “intimidate” some among them. If every such statement could lead to formal sanctions, and possibly even loss of employment, the pursuit of knowledge and the testing of ideas in the college classroom would be profoundly chilled.

The brief also recognizes the importance of combatting sexual harassment, and explains that these two goals are not in contradiction, but can instead be mutually achieved. “To achieve these dual goals, hostile environment policies, particularly those focused on speech alone, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on First Amendment rights of free speech and academic freedom.” Finally the brief argues that to distinguish unprotected harassing speech from constitutionally protected speech under the First Amendment, policies allowing discipline for sexual harassment based solely on speech must include a showing that the speech was so “severe or pervasive” that it created a hostile environment.