Combating bigotry in law enforcement.

It is not unusual for police and law enforcement leaders to believe that first amendment rights of sworn and civilian personnel prevent firm departmental policies and sanctions against bigoted speech and expressive conduct. Police executives understand that ethnic slurs, racial epithets, sexist insults, and other expressions of bigotry are morally indefensible and have no rightful place in public service. But, along with elected officials, they may feel legally constrained from implementing policies designed to prevent and root out bigoted speech and behavior.

In civilized nations, freedom of thought is sacred. Human dignity is grounded in respect for equality, liberty, and the equal right of individuals to think as they see fit. So profound is the right to freedom of thought that no one may be punished legitimately for what they think, no matter how benighted, wrong, or irresponsible their thoughts may be. Freedom of thought is the most basic of all obstacles to governmental tyranny.

The right to freedom of thought is unconditional. And, because words and actions normally give expression to what individuals think, traditions of civility embrace great respect for freedom of expression. However, neither the U.S. Constitution nor first amendment case law guarantees unconditional freedom of speech and nonverbal expression.

To what extent, then, do law enforcement employees enjoy first amendment protection for ethnic slurs, racial epithets, demeaning sexist insults, and other bigoted speech and nonverbal conduct? The U.S. Supreme Court never has answered this question directly, but the Court did reaffirm recently the broad latitude allowed public employers to prohibit employees from using "...offensive utterances to members of the public, or to the people with whom they work"(1) that interfere with the effective accomplishment of the governmental employer's mission. A fair conclusion from the results reached by those lower courts that have addressed the issue is that the first amendment provides little, if any, protection for the bigoted speech of law enforcement employees.

This article begins with a discussion of the analytical framework for determining first amendment protection for public employees. Next, it reviews court decisions involving law enforcement employees who claim first amendment protection for speech or expressive conduct that can fairly be characterized as bigoted. Finally, the article discusses the ethical duty to combat bigotry in law enforcement organizations.(2)

The Analytical Framework

The threshold question for determining whether a particular expression by an employee is protected by the first amendment is whether it may be "...fairly characterized as constituting speech on a matter of public concern."(3) Courts examine the content, form, and context of employee speech to determine whether it relates to any matter of political, social, or other legitimate concern to the community.

An employee' s expressive activity that fails to satisfy this so-called public concern test is generally not protected by the first amendment.(4) Examples of an employee's speech that courts have ruled not to be a matter of public concern include:

1) A police chief's personal opinion of another person because the purpose for the speech was to advance his private interests;(5)

2) A college professor's incessant use of profanity in the classroom because his intent was merely to exhibit his attitude toward his students;(6) and

3) The locker room speech of a college basketball coach in which he used the word "nigger" because his purpose was to motivate his players rather than to impart any socially or politically relevant message.(7)

Conversely, a college professor's derogatory comments about Jews that were characterized as "hateful and repugnant" were held to be speech on a matter of public concern. The court found that these comments were made in the context of the professor's criticism of the public school curriculum for reflecting bias against minorities and a history of black oppression that the court said are issues "...suffused with social and political hues."(8) In contrast to the locker room speech of the basketball coach, the professor's derogatory comments arguably advanced viewpoints, however repugnant, the purpose of which was to influence or inform public debate.(9)

Once the public concern requirement is satisfied, courts then employ a balancing of interests test to determine whether the value of the speech outweighs legitimate interests of the governmental employer. The closer the expressive activity reflects on matters of public concern, the more conclusive the employer's evidence must be to show that the speech is likely to disrupt legitimate governmental interests and purposes. However, employee speech on a matter of public concern has no first amendment protection if under this balancing of interests analysis its potential disruptiveness to governmental interests outweighs its value to the public interest.

For example, in the case involving the college professor who made derogatory comments about Jews that were deemed a matter of public concern, the U.S. Court of Appeals for the Second Circuit nonetheless ruled that the speech was unprotected under the balancing test, based on the university's showing that the comments would likely disrupt university operations.(10) The court concluded that the first amendment "...permits a government employer to fire an employee for speaking on a matter of public concern if 1) the employer's prediction of disruption is reasonable; 2) the potential disruptiveness is enough to outweigh the value of the speech; and 3) the employer took action against the employee based on this disruption and not in retaliation for the speech."(11)

The Public Concern Test

In assessing the content, form, and context of an employee's speech to determine whether it relates to a matter of public concern, courts tend to focus on the following three closely related factors: 1) The communicative purpose or motivation of the speaker, 2) whether the speech merely reflects a personal bias or grievance of the speaker, and 3) whether the expression is directed to the public. Courts employing these factors generally conclude that bigoted speech by law enforcement employees fails the public concern test.

For example, in Pruitt v. Howard County Sheriff's Department,(12) the Maryland Court of Special Appeals concluded that "Nazi-like" comments and behavior by officers were not a matter of public concern in the technical sense that they could not "be fairly characterized as constituting speech on a matter of public concern." The conduct ranged from parodies of "Hogan's Heroes," exaggerated German accents, and military mannerisms, such as the Hitler hand salute and heel clicks, to the use of terms like "achtung" and "sieg heil." The conduct was intended solely for the private amusement of other department and courthouse employees.

In ruling the officers' dismissal did not violate the first amendment, the court concluded that the officers' conduct merely reflected a personal bias, was bereft of any political content, and was intended for amusement rather than for debate on any matter of public concern.(13) The court accepted the general proposition that a law enforcement employee's "resort to epithets and personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution."(14) The court also distinguished this private parody in front of co-workers from a public performance containing satire or humor and suggested the latter would more likely be deemed a matter of public concern.(15)

In Tindle v. Caudell,(16) the U.S. Court of Appeals for the Eighth Circuit concluded that a costume worn by an officer at a Halloween party at the Fraternal Order of Police lodge did not constitute speech on any matter of legitimate public concern. The officer attended the party dressed in blackface, wearing bib overalls and a black, curly wig, and carrying a watermelon. The court noted that wearing a particular outfit or costume is nonverbal conduct that is protected as speech if it is intended to convey a message likely to be understood by those who view it.

The court reasoned that the officer's admitted motivation for wearing the costume, i.e., to have a good time and entertain other party guests, lessened the costume's expressive attributes because "[a]musing other guests at a private party with no showing of any intended message is not speech on a matter of public concern."(17) The court also agreed with Pruitt that an officer's artistic expression of satire or humor before a public audience would more likely be deemed speech on a matter of public concern.

In Hawkins v. Department of Public Safety,(18) the Maryland Court of Appeals ruled that a prison guard's abusive words and conduct directed toward a private citizen while the guard was off duty, away from the prison, and out of uniform failed the test of speech on a matter of public concern. After arguing with a bank teller over a check, the guard proclaimed loudly: "Hitler should have gotten rid of all you Jews." The court ruled the guard's words were not speech on a matter of public concern, because he was not attempting to stimulate a dialogue on the Holocaust but instead giving vent to his anger and using speech as a weapon to abuse the teller who had inconvenienced him.(19)

In Lawrenz v. James,(20) a corrections officer, while attending a barbecue on Martin Luther King Day wearing a t-shirt adorned with a swastika and the words "White Power," discussed with other officers their shared perception of managerial bias against white officers and the department's affirmative action program. A federal district court ruled the officer's "...beliefs relating to the swastika and the strength or power of white people are purely matters of personal interest, not matters of public concern."(21)

The court acknowledged that the officer's speech relating to the alleged discriminatory treatment against white officers posed a harder question. Still, the court concluded that it was not speech on a matter of public concern because the officer's motivation for discussing with his co-workers the alleged race discrimination was not to bring the issue to the public's attention but was merely an airing of a personal employee grievance, and the statements were not made publicly or intended for the public.(22)

The Balancing Process

The cases discussed in the preceding section suggest courts will find most bigoted expression by employees not to be speech on a matter of public concern. However, even in those instances where employee speech is considered a matter of public concern, that speech is protected by the first amendment only if a court also determines that its value to the public interest outweighs its adverse effects on legitimate law enforcement interests.

In this balancing process, courts do not require a demonstration of actual disruption of law enforcement caused by the employee's speech; instead, courts afford substantial weight to the employer's reasonable prediction of disruption.(23) The cases discussed below illustrate judicial acceptance of the connections between an employee's bigoted expression and disruption of law enforcement and the related need for departmental regulations prohibiting bigoted expressions that undermine law enforcement efficiency and effectiveness.(24)

In Tindle, the court reasoned that even if the officer's offensive appearance at the Halloween party had satisfied the public concern requirement, the interests of the police department outweighed the value of the officer's expressive conduct. First, the need for harmony and close working relationships in a police department is of great importance, and the undisputed evidence showed that some African-American members of the department felt belittled and ridiculed by the costume. Second, management had a reasonable basis for believing the officer's conduct had the clear potential to disrupt working relationships in the department. Third, the primary basis for the department's imposition of discipline was the potential internal disruption within the police department, not negative publicity or repercussions in the community resulting from the officer's behavior.(25)

The court in Tindle also rejected the officer's constitutional challenge to the underlying departmental regulations that purported to "...prohibit a police officer from engaging in conduct that could result in justified criticism of the officer or the department and from ridiculing, mocking, taunting, or deriding any person." The court stated that because "...police departments function as paramilitary organizations, their members may be subject to stringent rules and regulations that could not apply to other government agencies."(26)

The court found the regulations rationally related to the department's legitimate interest in developing discipline, esprit de corps, and uniformity within its ranks. Moreover, while conceding that the regulations did not precisely define what would constitute impermissible conduct, the court believed they gave officers adequate notice that high standards of conduct are required.(27)

In Lawrenz, the court concluded that even if the officer's wearing of the "White Power" t-shirt with the swastika was deemed to be speech on a matter of public concern, the balancing process would strongly favor departmental interests for a number of reasons. First, management had reasonable grounds for believing the incident would have a negative effect on prison safety and operations. Second, the first amendment does not require law enforcement agencies to wait until racial tensions erupt before taking action. Third, employees in law enforcement-type organizations who engage in expressions only tangentially related to speech on a matter of public concern are entitled to less protection than in other contexts.(28)

The Ethical Duty to Combat Bigotry

Fidelity to the public trust in law enforcement and living up to the oath to uphold and defend the Constitution are impossible without respect for justice. Justice, including respect for human dignity and equal standing under the law, is simply antithetical to bigotry. Because the achievement of justice is the highest ideal and purpose of government itself, courts do not provide any blanket protection for bigoted speech and expressive action by law enforcement personnel.

The mission of police and law enforcement agencies is severely undermined and can be utterly ruined wherever sworn and civilian personnel are bigoted against members of the public or against each other. Sworn and civilian personnel, like everyone else, have a right to think what they will, but they do not have any comparable right to give expression to bigotry, or to do so without sanction.

Recruitment, training, supervision, and procedures for accountability in law enforcement should be unambiguous in such matters. Where background investigations disclose habits of bigoted speech, as in ethnic slurs, racial epithets, gender insults, and the like, those habits of conduct may be entirely sufficient to disqualify applicants. Bad habits are hard to change, and recruitment should not treat habits that are inimical to responsible policing as if they were unimportant in any way.

Experienced police administrators know that it is harder to rid a department of employees who are unfit for public service than it is to avoid hiring them initially. The first line of defense against bigotry is in hiring policies and practices and in appropriately focused background investigations.

In training, supervision, and overall accountability, departments are obligated to explain why bigotry is wrong and why the department will not tolerate bigoted speech or expression. The right to freedom of thought should be emphasized and, with it, the duty of respect for human dignity and for justice in everyday life and in the performance of duty.

Police officers should understand that the right to freedom of thought protects benighted thinking, but does not make it right and does not protect speech and behavior that give voice to it. Such instruction is not "sensitivity training." It is a matter of teaching without equivocation the duties of justice in speech and action that are incumbent on police, and of teaching what an oath to uphold the Constitution means. Good instruction necessarily includes close attention to the words of the preamble to the Constitution.

Likewise, police officers should learn that no one is exempt, by virtue of any inherited quality, from being prejudiced. Bigotry is a human failing, not a failing to which only some people by reason of birth are susceptible. The bigot, as law enforcement personnel should understand, is in a profoundly consequential way a moral failure.

No matter what color, ethnicity, religion, or gender they are, if individuals are prejudiced against others because of color, ethnicity, religion, or gender, they are failures in their understanding of humanity. The inability to grasp this marks not only the ways in which the bigot is contemptible but also all the ways in which the bigot is pitiable.

Contempt for the person whose bigotry is inevitably a form of self-debasement tends, therefore, to be mingled with a disdainful pity that the person should be so divorced from a trustworthy perception of reality about human beings, human feelings, and human life. Police officers cannot serve the public interest faithfully, cannot enforce the law justly, if they are so divorced from reality that they speak and act with bigoted contempt for either fellow employees or members of the public they serve.

The duty to combat bigotry in policing and law enforcement is among the most important obligations in the tradition of higher intellectual and moral standards for public servants than for the general public. Law enforcement leaders who have mistakenly believed themselves to be constrained by the first amendment from taking action against bigoted expression should recognize that they have very considerable authority to bring to bear against bigotry.

Failure to exercise that authority in recruitment, training, supervision, and policies of accountability threatens to place the police, law enforcement agencies, and the public in jeopardy time and again from the bigots of the world. Expressions of bigotry by police poison public confidence in the entire criminal justice system and reduce criminal trials to tests of police credibility.

Bigoted speech and expression are wrong by their nature and destructive in their consequences. They are, in a word, a moral outrage. No excuse can be given for laxity in the efforts of police leaders and their agencies to limit, as fully as the law allows, the continuing presence of bigoted expression in law enforcement.

Endnotes

1 Waters v. Churchill, 114 S.Ct. 1878, 1886 (1994).

2 For a comprehensive discussion of ethics in policing, see Edwin J. Delattre, Character and Cops: Ethics in Policing, 2d ed. (Washington, DC: American Enterprise Institute for Public Policy Research, 1994).

3 Connick v. Myers, 103 S.Ct. 1684, 1689 (1983).

4 However, several courts have found the public concern test inapplicable to speech that occurs away from the job and is not about the job. See, e.g., Flanagan v. Munger, 890 F.2d 1557 (10th Cir. 1989); Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985); and Hawkins v. Public Safety Dept, 602 A.2d 712 (Md. 1992)(Bell, dissenting).

5 Linhart v. Glatfelter, 771 F.2d 1004 (7th Cir. 1985).

6 Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986).

7 Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995).

8 Jeffries v. Harleston, 21 F.3d 1238, 1245 (2d Cir. 1238 1994), rev'd on other grounds, 52 F.3d 9, cert. denied, 116 S.Ct. 173 (1995).

9 In Skruggs v. Keen, 900 F.Supp. 821 (W.D.Va. 1995), the court said that a teacher's negative comments about interracial dating and racial discrimination during a private conversation with students are a matter of public concern, even if potentially insulting to a certain group. However, the court suggests that a racial slur during such a conversation would not be protected: "Indeed, if the racial slur were used, it would arguably not be protected. Even in cases where the government regulates speech as a sovereign, speech containing 'fighting words' is not given protection." Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

10 Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995), cert. denied, 116 S.Ct. 173 (1995).

11 Id. at 13.

12 623 A.2d 696 (Md. App. 1993), cert. denied, 114 S.Ct. 1059 (1994).

13 Id. at 701, 702. The U.S. Court of Appeals for the Fourth Circuit, in an unpublished disposition, reported at 76 F.3d 374 (1996), held that the officers had no recourse under Title VII of the 1964 Civil Rights Act or other federal civil rights laws and dismissed their claim of discrimination.

14 Id. at 702.

15. Id.

16 56 F.3d 966 (8th Cir. 1995).

17 Id. at 970.

18 602 A.2d 712 (Md. 1992).

19 Id. at 717-18.

20 852 F.Supp. 986 (M.D. Fla. 1994), aff'd, 46 F.3d 70 (11th Cir. 1995).

21 Id. at 992. In West Baton Rouge Parish v. Westside Aero, 572 So.2d 1127 (La. App. 1 Cir. 1990), the court held that racially and sexually offensive cartoons created and circulated by a police officer did not involve matters of public concern because they pertained to personal disputes and grievances and were not calculated to disclose misconduct.

22 Id.

23 See, e.g., Jeffries v. Harleston, 52 F.3d at 13.

24 In Rankin v. McPerson, 107 S.Ct. 2891 (1987), the Court suggests the nature of an employee's duties in a law enforcement organization is relevant to the balancing process and that an employee whose duties are purely clerical with minimal involvement in law enforcement may have slightly greater first amendment protection to engage in controversial speech.

25 56 F.3d at 971-72.

26 Id. at 973

27 Id.

28 852 F.Supp. at 993-94. See also, Bayges v. Southeastern Pennsylvania Transportation Authority, 1992 WL 392596 (E.D.Pa. 1992), aff'd, 5 F.3d 1488 (3d Cir. 1993)(employee who made racially derogatory remarks that were overheard by reason of an inadvertently keyed radio transmitter could lawfully be disciplined); and Griggs v. No. Maine Fire Dist., 576 N.E.2d 1082 (Ill. 1991)(an employee's vulgar and ethnically derogatory speech occurring during a private conversation at the station was not protected speech).

Dr. Delattre is dean of the School of Education and professor of philosophy in the College of Arts and Science at Boston University.

Special Agent Schofield is chief of the Legal Instruction Unit at the FBI Academy.