In Rodriguez v. Maricopa County Community College District, (— F.3d —-, C.A.9 (Ariz.), May 20, 2010), the Ninth Circuit United States Court of Appeals considered a situation which it described as “the interplay between the First Amendment and the right to be free of workplace harassment.” The legal question was whether the chancellor and president of the Maricopa County Community College District (“College”) were entitled to qualified immunity in a hostile work environment discrimination lawsuit. The litigation started after a professor sent racially-charged emails over the College’s email distribution list, so that every employee with an email address received the professor’s emails. Employees subsequently filed suit against the College and named administrators for failing to stop the e-mails.
The Ninth Circuit concluded the employees could not state a claim for hostile work environment discrimination based on the College’s failure to stop the professor from sending the emails. The College administrators did have qualified immunity. The Ninth Circuit also ruled that the College, as a public employer, could not silence the professor’s speech just because the ideas he promoted might be offensive.
Professor Walter Kehowski (“Kehowski”) taught math at the College. Kehowski sent an email to all College employees’ email address asking why the College was endorsing “Dia de la raza,” a day he claimed some Hispanics celebrate instead of Columbus Day. Kehowski characterized “Dia de la raza” as a racist event. A week later Kehowski sent an email which stated, in part, “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.” Kehowski sent a third email responding to attacks that his previous emails were racist. In the third email, Kehowski linked to a website he maintains on the College’s web server.
In response to Kehowski’s emails, the College’s president sent an email stating that individuals using the College’s email system are allowed to express an opinion on almost any topic. The president stated he wanted everyone to know he supports “District’s values and philosophy about diversity.” The College’s chancellor next issued a press release stating Kehowski’s message was not aligned with the District, but cautioning that “disciplinary action . . . ‘could seriously undermine our ability to promote true academic freedom.'” Despite employee complaints that Kehowski’s emails created a hostile work environment, the College did not take any disciplinary action or take steps to implement the existing anti-harassment policy.
A certified class of District’s Hispanic employees filed a lawsuit against the College, the College’s Governing Board and chancellor, and the College’s president. These employees alleged that the failure to properly respond to the emails created a hostile work environment in violation of Title VII and the Equal Protection Clause. The federal District Court granted summary judgment in favor of the chancellor and president on the Title VII claims, but allowed the 14th Amendment Equal Protection Clause claims against the president and chancellor to go forward. The president and chancellor appealed the District Court’s decision that they were not completely entitled to qualified immunity.
The Ninth Circuit reversed the District Court’s decision that the president and chancellor were not entitled to qualified immunity. The primary issue before the Ninth Circuit was whether Kehowski’s dissemination of speech in the emails constituted workplace harassment.
The Ninth Circuit first noted the College was not required to discipline Kehowski: After “an employer is made aware of unlawful harassment, employees are entitled to have the employer take reasonable and appropriate steps to investigate and make it stop.” The Ninth Circuit stated, “A warning or other discipline, even dismissal, may be the appropriate action in some circumstances, but the proper object of an employer’s response is to deter and stop further harassment, not to punish the harasser.”
The Ninth Circuit acknowledged that a public employer may violate the Equal Protection Clause by refusing to stop unlawful harassment. The Ninth Circuit concluded, however, that Kehowski’s “speech was not unlawful harassment.” The employees’ objection to Kehowski’s speech was based solely on his point of view: “[T]he government may not silence speech because the ideas it promotes are thought to be offensive.” The Ninth Circuit noted that Kehowski’s view fell outside the mainstream and the words in his emails sparked intense debate: “The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the conflict and insult is high.” The Ninth Circuit opined, “The right to provoke, offend and shock lies at the core of the First Amendment,” stating this is especially true on college campuses, which have historically fostered progress through discord and dissent. Also, the Ninth Circuit held the First Amendment demands that substantial deference be given to the College’s decision not to take disciplinary action against Kehowski: “To afford academic speech the breathing room that it requires, courts must defer to colleges’ decisions to err on the side of academic freedom.”
The Ninth Circuit also wrote that, “We therefore doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial interference that [Employees] seek.” Either sexual advances or racial insults “directed at an individual in the workplace may be prohibited on the basis of their non-expressive qualities . . . as they do not ‘seek to disseminate a message to the general public, but to intrude upon the targeted [listener], and to do so in an especially offensive way.'” Here, however, Kehowski’s emails and websites “were pure speech; they were the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot.”
Although advocacy of discriminatory ideas in a supervisory relationship may amount to intentional discrimination, here, the employees did not allege Kehowski had any control over their employment. Thus, Kehowski’s use of the College’s email list and web server to disseminate his ideas did not amount to college endorsement of those ideas. The College’s power to close the forum—the email list and web server—did not obligate them to do so. The Ninth Circuit concluded that if a speaker’s speech amounts to harassment, the response should be to silence the harasser, not shut down the forum the speaker used. “[I]f speech is not harassment, listeners who are offended by the ideas being discussed certainly are not entitled to shut down an entire forum simply because they object to what some people are saying.”
The Ninth Circuit concluded, “Those offended by Kehowski’s ideas should engage him in debate or hit the ‘delete’ button when they receive his emails. They may not invoke the power of the government to shut him up.”
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