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OU professor's use of racial slur may not be protected, First Amendment expert says

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Evans Hall

Evans Hall pictured Sept. 12.

The First Amendment and academic freedom may not have protected an OU professor when he compared the n-word to the phrase “OK, boomer,” in class, an expert said, despite a conflicting statement from the university and a free speech organization.

According to a Friday statement, the professor — Peter Gade, Gaylord director of graduate studies and Gaylord Family Endowed Chair — agreed to step down from teaching the capstone class and undergo related training. But in a statement Tuesday afternoon, interim OU President Joseph Harroz said the professor’s comments were “protected by the First Amendment and academic freedom.”

First Amendment expert Clay Calvert said the 2006 Supreme Court decision Garcetti v. Ceballos may put that First Amendment protection into question.

Calvert, who serves as director of the Marion B. Brechner First Amendment Project at the University of Florida, said that the concern of academic freedom is more relevant to how professors teach their classes and is not really something that protects the professor in this situation.

“The courts have made it clear that if what the professor says is germane to the subject matter, then it is generally going to be protected,” Calvert said. “(For example) if I said … in calculus, ‘Fuck this formula,’ that's not really germane to the subject matter. But if I were talking about the seven dirty words George Carlin case in a communications law class, and I said ‘These are the seven words the court had to analyze – fuck, shit, whatever,’ then that’s germane to the subject matter.”

Gaylord College of Journalism and Mass Communication Dean Ed Kelley said in an evening email to Gaylord students said it was a word that was “hurtful and divides us.”

“I’m not sure that (type of language) does (have a place in the classroom),” Kelley told The Daily earlier Tuesday. “Perhaps it did once upon a time. Perhaps he was using it as an educational tool. We have no record at all of Dr. Gade, a distinguished professor who's been on the faculty here for more than 20 years, of him ever using this term, much less any kind of other racially inflamed language.”

The Daily reached out to Senior Vice President and Provost Kyle Harper on Tuesday and followed up Friday morning, but did not receive comment by 3:30 p.m. Friday. According to the OU Faculty Handbook, Harper is responsible for “academic policies and procedures and personnel actions involving faculty, students, and academic support staff,” among other things.

Director of Media Relations Kesha Keith told The Daily on Friday afternoon that administrators would not comment beyond university statements Tuesday.

Calvert said the Ceballos case cemented that if a government employee is speaking pursuant to their official capacity – like the professor speaking in class – they don’t have First Amendment rights of free speech. When employees are speaking outside of their official duty – for instance, on social media – that’s when the employee’s First Amendment rights become more gray.

“In this case, because it’s set inside the classroom … that comes down to an argument (of), how relevant really was the usage of that term?” Calvert said. “Was it really germane to what he was discussing, number one. But the second principle, then, is that if you're a government employee speaking as part of your official duties, you really don’t have any First Amendment rights.”

The Foundation for Individual Rights in Education, an organization that works to protect the rights of students and faculty at universities across the U.S., said in an emailed statement that OU was correct in referencing that the law “appropriately distinguishes between talking about racial slurs, including in class discussions, and directing them at others.”

“Because academic freedom is protected by the First Amendment, public universities are generally barred from punishing professors for referencing a slur in an in-class discussion with a relevant pedagogical purpose,” the statement read. “Academic freedom protects the discussions between faculty and students that take place in classes, even when others consider those discussions unwise, foolish, or offensive, and it requires breathing room to survive.”

But Calvert said the professor could be disciplined — and even fired — if the university considered his use of the slur irrelevant to the subject matter. The university’s decision may be more gray because the professor was not using it in reference to source material.

“It's a much closer call whether or not the First Amendment were protective (in this case),” Calvert said. “And it depends upon whether or not it really was germane to what he was trying to teach.”

Calvert said although the use of a racial slur may be legally permissible in some cases, professors need to be aware of the ethical issues with using such language, as there has been a generational shift to use more restraint.

“No matter how much they can say permissibly under the First Amendment, professors certainly do have to be cognizant of the mores of the time, the customs and the values,” Calvert said. 

news managing editor

Jordan Miller is a journalism and political science junior serving as The Daily's news managing editor. Previously she served as The Daily's spring 2019 news editor, fall 2018 assistant visual editor and was an SGA beat reporter.

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