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High court turns away college officials' appeal in free-speech case

By The Associated Press


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Editor's note: Kenneth Hardy died June 8 of lung cancer. His wife, Adreinne Regnier, a professor and coordinator of Jefferson Community College's philosophy department, said she would continue with her husband's lawsuit.

WASHINGTON — Leaders of a Kentucky community college lost a bid to have the Supreme Court hear their appeal in a case that asked if a college instructor had a constitutional right to use racial slurs in class as part of a discussion on hurtful communication.

Complaints about the lesson cost the teacher his job, and the court had been urged to use his dismissal to decide whether the First Amendment applies to all on-the-job speech. Justices declined today, without comment, to review an appeal from the teacher's superiors.

A federal appeals court said Kenneth Hardy, who taught communications classes at a two-year college in Louisville, Ky., could sue the college president and dean claiming they retaliated against him for his comments.

Hardy had asked students in his interpersonal communication class to examine how language is used to hurt classes of people. He sought examples from students and they discussed derogatory terms for blacks, homosexuals and women.

His superiors' lawyer said that Hardy was speaking as a college employee and cannot claim his constitutional rights were violated. Had he made comments away from work, it's clear he had a right to do so. Courts have reached various conclusions in employee speech cases.

"The argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction, is totally unpersuasive," the 6th U.S. Circuit Court of Appeals said last year in siding with Hardy.

The college president's lawyer, John G. Roberts, said the appeals court "sharply reduced the flexibility enjoyed by public employers to regulate those who speak on their behalf."

Hardy taught from 1995-98 at Jefferson Community College, the largest two-year college in the Kentucky system with about 9,500 students and multiple campuses. Court records show Hardy was popular with students.

A black student, however, complained about the 1998 lesson. The student contacted a local civil rights activist, who met with the president and demanded Hardy's dismissal, according to Hardy's lawyer.

Hardy is suing Richard Green, who was the college president, and Mary Pamela Besser, a dean, in their individual capacities. The state college has protection from lawsuits.

Hardy contends his use of controversial words prompted the college to end his teaching duties after the 1998 summer semester. The college claims his teaching methods were one of the causes, according to records.

The Supreme Court said in the 1968 case Pickering v. Board of Education that employees like teachers can comment on matters of public concern. Justices have never given specific guidelines for such cases.

"Because the essence of a teacher's role is to prepare students for their place in society as responsible citizens, classroom instruction will often fall within the Supreme Court's broad conception of 'public concern,'" the appeals court wrote.

The case is Besser v. Hardy.


2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01