Whether a publicly employed college teacher is constitutionally protected in the abusive use of profanity in the classroom is the most significant issue presented by this appeal. We hold that the constitution does not shield him and therefore AFFIRM the judgment of the district court.
I. BACKGROUND
Appellant Martin was an economics instructor at Midland College in Midland, Texas. Appellees are the president, vice president, dean and trustees of the college. The dean and vice president originally disciplined Martin in 1983, following a formal
Martin’s subsequent § 1983 lawsuit alleged deprivation of his first amendment right of free speech, abridgement of an alleged right of academic freedom, and denials of due process and equal protection. The jury found in Martin’s favor on issues pertaining to free speech1 and equal protection and awarded damages, but denied his due process claim. The district court granted judgment n.o.v. to the defendants, finding no evidentiary support for the equal protection allegations and concluding that Martin’s profanity was not constitutionally protected. Martin appeals all but the due process claim.
II. ANALYSIS
Appellant asserts his language was not obscene, Roth v. United States, 364 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1967), but only profane and as such enjoys constitutional protection unless it caused disruption.2 Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). We find this argument an incomplete and erroneous expression of pertinent first amendment jurisprudence.
The constitution protects not simply words but communication, which presupposes a speaker and a listener, and circumscribes this protection for purposes which enhance the functioning of our republican form of government. The “rights” of the speaker are thus always tempered by a consideration of the rights of the audience and the public purpose served, or dis-served, by his speech. Appellant’s argument, by ignoring his audience and the lack of any public purpose in his offensive epithets, founders on several fronts.
Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), recently explained the limits of first amendment protection of speech afforded public employees like Martin. The Supreme Court reiterated that the goal of such protection is to prevent suppression of such employees’ participation in public affairs and “chilling” of their freedom of political association. 461 U.S. at 146-46, 103 S.Ct. at 1689. It is limited to speech on matters of “public concern,” otherwise, government would be hobbled in its regulation of employment conditions, and public employees would enjoy an immunity from the consequences of their speech not shared by anyone in the private sector. If the offending speech does not bear upon a matter of public concern, “it is unnecessary for us to scrutinize the reasons for [the] discharge.” Connick, 461 U.S. at 147, 103 S.Ct. at 1690. Moreover, “whether an employee’s speech
There is no doubt that Martin’s epithets did not address a matter of public concern. One student described Martin’s June 19, 1984, castigation of the class as an explosion, an unprovoked, extremely offensive, downgrading of the entire class. In highly derogatory and indecent terms, Martin implied that the students were inferior because they were accustomed to taking courses from inferior, part-time instructors at Midland College. The profanity described Martin’s attitude toward his students, hardly a matter that, but for this lawsuit, would occasion public discussion. Appellant has not argued that his profanity was for any purpose other than cussing out his students as an expression of frustration with their progress — to “motivate” them— and has thereby impliedly conceded his case under Connick.
Ignoring that his audience consisted of students also led to Martin’s undoing. Indecent language and profanity may be regulated in the schools, Bethel School District No. 403 v. Fraser, — U.S. -, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), and over the public airwaves. FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). The policies leading to affirmation of some speech restrictions in these circumstances support the college’s termination of Martin. In Bethel, the Supreme Court affirmed disciplinary action against a high school senior who, against the advice of teachers and in violation of school rules, gave a sexually explicit and vulgar speech to a student assembly. As the majority opinion states,
“Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. * Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavors the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanction.”
Bethel, 106 S.Ct. at 3165 (citations omitted). Moreover, the first amendment does not prevent schools from determining “that the essential terms of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive speech and conduct.” Id.
Bethel admittedly involved a high school audience and it may be suggested that its justification for speech restraints rests largely on this fact. Nevertheless, we view the role of higher education as no less pivotal to our national interest. It carries on the process of instilling in our citizens necessary democratic virtues, among which are civility and moderation. It is necessary to the nurture of knowledge and resourcefulness that undergird our economic and political system. Repeated failure by a member of the educational staff of Midland College to exhibit professionalism degrades his important mission and detracts from the subjects he is trying to teach. The school officials uniformly made this point at trial, testifying that use of profanity in the classroom is unprofessional and hinders instruction. Parrish, the college president, emphasized that it is vital for the teacher to have respect for the students, especially when he is in an authority role. Parrish further observed that a teacher’s conduct can strongly influence the students, even at the college level. Indirectly confirming these views, one student described Martin’s outpouring as unprofessional and stated that he had lost interest in economics as a result of Martin’s belittling comments. Another student expressed his reticence to asking questions in class for fear of Martin’s ridicule. To the extent that Martin’s profanity was considered by the college administration to inhibit his effectiveness as a teacher, it need not be tolerated by the
Martin’s termination also draws support from FCC v. Pacifica Foundation, supra, in which the Supreme Court upheld an FCC order disapproving radio broadcast of a vulgar and indecent George Carlin monologue. A principal ground for the Court’s conclusion was the fact that, going into private homes over the airwaves, the broadcast was thrusting patently offensive speech upon an unwilling, “captive” audience, likely including minors. 438 U.S. at 749-51, 98 S.Ct. at 3039-3040. It is true that vulgarity in Central Park may be tolerated and protected by the First Amendment because its unwilling viewer or listener has the right to turn away. Cohen v. California, 403 U.S. 15, 22-23, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971); see also Erznoznik v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). However, we hold that the students in Martin’s classroom, who paid to be taught and not vilified in indecent terms, are subject to the holding of Pacifica, which, like Cohen, recognizes that surroundings and context are essential, case-by-case determinants of the constitutional protection accorded to indecent language. Martin’s language is unprotected under the reasoning of these cases because, taken in context, it constituted a deliberate, superfluous attack on a “captive audience” with no academic purpose or justification.
Were Martin an assistant district attorney who repeatedly used profanity in the courtroom, we have no doubt that he could be terminated for unprofessional behavior. Were he a member of Congress, such language could result in censure. Bethel, 106 S.Ct. at 3164. For the foregoing reasons, we conclude his status as a college teacher is no less sensitive to the use of such language than that of a courtroom lawyer or member of Congress.
Martin also challenges the district court's judgment n.o.v. on the issue of equal protection. We have reviewed the record and find that Martin failed to introduce evidence that he had been treated differently from other similarly situated persons, or even that there were others similarly situated. The district court correctly held for the defendants on this point.
The judgment of the district court is AFFIRMED.
1.
Some of the jury interrogatories regarding the free speech issue asked for a balancing of Martin’s language between its usefulness to his instruction and its disruptive tendency. Such balancing involves a question of law for the court. Connick v. Myers, 461 U.S. 138, 199 n. 7, 103 S.Ct., 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983).
2.
Appellant also argues vigorously that he has a first amendment right to "academic freedom” that permits use of the language in question. It is, however, undisputed that such language was not germane to the subject matter in his class and had no educational function. Thus, as in Kelleher v. Flawn, 761 F.2d 1079, 1085 (5th Cir.1985), we find it unnecessary to reach this issue.
3.
Only if the speech passes this first test of protection does the court "balance” the employee’s rights against any disruptive effect on the employer’s mission. Connick, 461 U.S. at 151—55, 103 S.Ct. at 1692-94.
4.
Our conclusion that a public college teacher’s classroom use of profanity is unprofessional and may be prohibited by the school relies on the judgment of the Midland College administrators who testified at trial. As the Supreme Court held in Board of Education v. Pico, 457 U.S. 853, 864-65, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982), federal courts should ordinarily decline to intervene in the affairs of the public schools, where the "comprehensive authority of States and of school officials ... to prescribe and control conduct has historically been acknowledged". This rule has been enforced in all but the most sensitive constitutional areas. Several Midland College administrators testified on the basis of strong educational credentials and years of experience in their vocation and in the local community. On their shoulders rest the college’s educational standards and its utility as a publicly-supported institution. The federal courts thus appropriately respect the professional conclusion of those whose past and future careers depend upon the esteem due to Midland College. “The determination of what manner of speech in the classroom ... is inappropriate properly rests with the school board.” Bethel, 106 S.Ct. at 3165.