The F-Word: “Fuck in Education”

I have had two consecutive arbitration cases involving employees who used “fuck” in a tirade. Both employees were fired. For guidance on how the law treats the F-word, I consulted a classic law review article, Christopher Fairman, “Fuck,” Cardozo Law Review (2007).

Alas, he had nothing to say about the F-word in the workplace, which I find effing disappointing.

But his research is immensely interesting and worth sharing.

In general, he notes:

Fuck is a highly varied word. While its first English form was likely as a verb meaning to engage in heterosexual intercourse, fuck now has various verb uses, not to mention utility as a noun, adjective, adverb, and interjection….

Linguists studying fuck identify two distinctive words. Fuck means literally “to copulate.” It also encompasses figurative uses such as “to deceive.” Fuck, however, has no intrinsic meaning at all. Rather, it is merely a word of offensive force that can be substituted in oaths for other swearwords or in maledictions. The fact that Fuck can be substituted for either God or hell illustrates the lack of any intrinsic meaning.

Fairman devotes an entire section to “Fuck Jurisprudence: … Fuck in Education”

He says:

It’s axiomatic that public school students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” At the same time, “the First Amendment rights of students in the public schools ‘are not automatically coextensive with the rights of adults in other settings,’ and must be ‘applied in light of the special characteristics of the school environment.”’

…

(Students Who Use the F-Word): For example, the Sixth Circuit recently held that an Ohio high school could ban Marilyn Manson t-shirts as vulgar or offensive speech under Fraser. The t-shirt starting the brouhaha depicted a “three-faced Jesus” and the words “See No Truth. Hear No Truth. Speak No Truth.” On the reverse was the word “BELIEVE” with the L, I, and E highlighted. After being told by the principal to change or go home, the student went home. Defiant, he returned the next three days donning a different Marilyn Manson shirt; each day he was sent home. A split panel of the Sixth Circuit held that under Fraser the school could ban merely offensive speech without having to apply Tinker's substantial and material interference test.

What is most troubling is the court's methodology. Rather than explaining why the t-shirts themselves were offensive— where all the court had to offer was that Marilyn Manson appeared “ghoulish and creepy”—  the court focused on the “destructive and demoralizing values” promoted by the band through its lyrics and interviews. Using a judicial version of the transitive property, the court found that the band promoted ideas contrary to the school’s mission and the t-shirts promoted the band. Ergo the t-shirts were offensive.

(Teachers Who Use the F-Word): Unfortunately, teacher speech exists in a murky First Amendment environment. As the Second Circuit recently lamented: “Neither the Supreme Court nor this Circuit has determined what scope of First Amendment protection is to be given a public college professor’s classroom speech.” Public school teachers traverse the same uncertain terrain.

…

The First Circuit revisited the issue again in Mailloux v. Kiley, where another high school English teacher taught a lesson on taboo words that included writing fuck on the blackboard. Following a parent’s complaint, he was fired for “conduct unbecoming a teacher.” While the district court seemed to agree with the testifying experts that the way Mailloux used the word fuck was “appropriate and reasonable under the circumstances and served a serious educational purpose,” divided opinion on the issue compelled the court to fashion a test for such situations. Ultimately, the district court held that it was a violation of due process to discharge Mailloux because he did not know in advance that his curricular decision to teach about fuck would be an affront to school policies.

…

If you have had the fortitude to read this much, here is a closing perspective from the late Prof. Fairman:

Suffice it to say, fuck is everywhere. As author Roy Blount, Jr. puts it: “the f-word is a fact of life. It thrives.” One recent Internet search revealed that fuck “is a more commonly used word than mom, baseball, hot dogs, apple pie, and Chevrolet.” It is present in movies, television programs, and popular music. An Associated Press poll conducted in March 2006 found that sixty-four percent of those surveyed used the word fuck.