Parties involved (Public institution and individuals)
Kenneth E. Hardy, Plaintiff - Appellee, Jefferson Community College and Kentucky Community and Technical College System,
Defendants: Mary Pamela Besser and Richard Green, Defendants-Appellants
Summary
The First Amendment of the United States Constitution affords protection to freedoms and rights of citizen that include but not limited to, freedom of speech. Such rights and freedoms are anchored in the Constitution and cannot be abrogated by any particular individual. Nonetheless, it is never always clear cut on what constitutes speech on issues of public concern so as to fall into the category of speech that is protected by the First Amendment.
Procedural history
This case was first argued at the District Court following a suit filed by the plaintiff citing violations of his rights under the First and the Fourteenth Amendment for non-renewal of his contract. The defendants filed a motion in defense justifying their dismissal and further claiming qualified immunity in their individual capacities. The District court denied the defendants their motion holding that Hardy’s words touched on a matter of public concern to which the defendants have filed an interlocutory appeal in this court over the same.
Issues involved
The issues up for determination in this case are what encompass freedom of speech as to be protected under the First Amendment. Also up for consideration is whether the use of the racial and gender slurs as used by the plaintiff in class found protection under the law and if they constitute a public comment over an issue of public concern. Further issues to be determined is the question as to whether the plaintiff in this case, Hardy has any claim against the college for non-renewal of his contract over the same and if the institution management can rely on qualified immunity defense to escape the claim by the plaintiff.
Rules
The First Amendment to the Constitution sets out several fundamental freedoms including the right of all individuals to free speech. The rules regarding the question as to what consists of matters of public concern is discussed in the case Pickering v. Bd. of Educ., and Dambrot v. Cent. Mich. Univ. The issue as to whether Hardy has an actionable claim following the non-renewal of his contract with the college can be answered by having regard to relevant case law such as Perry v. Sindermann, Anderson v. Creighton. Entitlement of Green and Besser to qualified immunity so as to defeat a claim by Hardy, Berryman v. Rieger.
Analysis
Freedom of speech
The freedom accorded to speech by the First Amendment to the Constitution is one of the most established and fundamental constitutional rights and one on which this case is founded. It is the case that the rights enshrined therein cannot be abridged by any other individual. It is established in law that the First Amendment rights trump other laws and intimidation that seek to cast a shadow on the free exchange of ideas in the classroom as demonstrated by an avalanche of case law Keyishian v. Bd. of Regents. However, just like any freedom, it comes with responsibility. As such, it is not a right without limitation or end. It only operates to the extent that it does not interfere with the rights of others. It is contended in this case that Hardy as an instructor allowed the use of derogatory words that were offensive to the African-American student and against the class policy. The student subsequently reported the same to a local rights activist who approached the college president and threatened with possible reduced enrolment of African-American students at the institution, owing to the incident.
The use of the socially controversial words in an academic context was designed to test the impact of the words on societal relations. As such, it touched on matters of public concern which fits it within the First Amendment protection of free speech. It has been held in the past by the Supreme Court that a public employee possesses the right to comment on matters of public concern and is in such instances protected under the First Amendment. In the case of Pickering v. Bd. of Educ., it was held that a teacher who made comments over a school’s funding issues was a matter of public concern and could not find a basis for dismissal. Since Hardy was a public employee at the college, he also needs to demonstrate that his speech was directed towards an issue of public concern.
In the Supreme Court decision of Connick v. Myers, it was held that the speech of a public employee is either protected under the constitution depending on whether it is of private or public nature. This is because speech on public issues is on a pedestal and has special protection under the constitution. Further, in determining whether such speech is of private or public nature, the court usually looks at the content, form and context of a particular statement.
Hardy’s dismissal
The college president and the dean relied on the decision of Hetrick v. Martin, in support of their argument that they had a right to evaluate the mode of instruction applied by Hardy. In that case, the professor dismissal after the evaluation by the university was upheld by the courts for failure to adhere to the teaching standards. However, this case departure from the Hardy case in that Hardy was able to do his job well as an instructor and even complemented by students.
Entitlement to quality immunity defense
The school officials also claim immunity defense and to this end, argue that reasonable officials would have disagreed as to whether, and as to what extent the words of Hardy were protected under the First Amendment. As discussed above, their claim would fail since they appear to have predicated their decision on the in-class speech which is objectively unreasonable.
Conclusion
In conclusion, it is the case that the right to free speech embedded in the constitution and that the use of words in a class by a lecturer mostly fit in the realm of public concern issues that found protection under the constitution.
Answers
Some of the crucial factors relevant to the Hardy case include the freedom of speech as protected by the First Amendment and what constitutes issues of public concern as to found protection under the constitution. The First Amendment plays a crucial role in the Hardy case by laying down the rights to free speech to enable the making of public comments and to facilitate the expression of views by persons. In this very instance, the First Amendment affords protection to persons and public employee to conduct their work without fear of reprisals and too make known their views on important issues of concern to the public. It is also wise to note that the mere fact that certain conduct is permissible under law by protection as a legal freedom does not make the particular conduct necessarily right. The issue as to what is morally right or wrong is not dependent on what is legally sanctioned since there is a difference between law and morality. A case in point is the protection afforded to gays and lesbians by the Constitution. It would be absurd and wrong in most societies to practice the same owing to its very nature of inhibiting the continuity of reproduction even though it is legally protected as a freedom. In distinguishing as to what is right or wrong, regard therefore needs to be had to moral values of the society and by ascribing to religious beliefs and practices.
The majority opinion in the Chaudhuri decision was to the effect that a faculty member could not succeed in a claim against a college for the holding of non-sectarian prayers at its events or the moments of silence in lieu of the holding of prayers. The court was of the opinion that the same action did not pass the muster of the Lemon test as laid down as to found an actionable action and necessitate a declarative and injunctive relief as well as damages for Chaudhuri. The question as to whether such a decision would be arrived at other colleges and universities were the same action to be practiced at events such as dedication ceremonies, faculty meetings, public lectures and athletic events has no definitive answer. The answer could as well be both in the affirmative and in the negative depending on a number of variables. To illustrate, it is helpful to examine the Chaudhuri decision so as to determine what variables influenced the judges into their decision. In a college or a university setting, the court looks at whether the activity at the institution has a secular purpose, whether the main effect of the activity tends to advance or inhibit a certain religion and lastly that the action must not be one that causes excessive entanglement of state with religion (Lemon v. Kurtzman). If the action passes the three Lemon test, it then does not warrant relief against a plaintiff as it does falls short of the Establishment Clause which stipulates that the Congress is not to make any law respecting the establishment of a religion.
In case the plaintiff in this case was a student rather than a faculty member like Chaudhuri, it would not make any major difference. This is because a university student is considered a mature adult who is not easily impressionable and as such susceptible to less coercion and pressure as to be indoctrinated or proselytized into the particular religion. The subsequent Supreme Court decision in the Doe case that appear to challenge the validity of Chaudhuri decision, which is a secondary school case. It is the contention that it makes a difference between a secondary institution and a higher education like in this instance. In the case of Lee v Weisman, the holding of prayers was held as unconstitutional because it was obligatory for the students to attend. Further, secondary school students have little choice on attending events or not and are also not mature adults who are easily impressionable and vulnerable to peer pressure and indoctrination.
Indeed, there are particular differences between elementary and higher education institutions to warrant different application of the Lemon test and the coercion test. This is because at elementary institutions, the students are of young age and as such easily co-opted and indoctrinated. In addition, in most of the cases, they have little choices, if any, to desist from attending events where such actions of sectarian prayers take place.
References
Amsterdam, A. G., & Bruner, J. S. (2009). Minding the Law.
Government Archives. (n.d.). The Constitution of the United States of America. Washington D.C.: Government Archives .
Kloppenberg, J. T. (2013). The Two Faces of American Freedom. Journal of American History, 99(4).
Park, R. C., Leonard, D. P., & Orenstei, A. A. (2011). Evidence Law: A Student's Guide to the Law of Evidence As Applied in American Trials. New York: West.
Shallhope, R. E. (2009). The Ideological Origins of the Second Amendment. Journal of American History, 4(1), 21-40.
Walters, M. D. (2010). "Legality as Reason: Dicey, Rand, and the Rule of Law". McGill Law Journal, 50(1), 563-586.
