Rodriguez v. Maricopa Co. Comm. College, No. 08-16073 (9th Cir. May 20, 2010)

By Paul Mollica

A jaw-dropper, and instant en-banc bait:  a right-leaning panel on the Ninth Circuit (with visiting Retired Justice Sandra Day O’Connor) holds that for a public employer, there may be no liability for hostile work environment under § 1983 if the alleged harassment consists of protected First Amendment speech, even of an explicitly racial nature.

Rodriguez v. Maricopa Co. Comm. College, No. 08-16073 (9th Cir. May 20, 2010): This decision arose on an interlocutory appeal of an order denying qualified immunity to several figures at the community college (there is also a claim against the employer under Title VII, but not expressly presented on appeal).

A class of Latino employees sued, represented by MALDEF, contending that the college had failed to take appropriate action to suspend a faculty member’s use of the school’s email system to blast messages of an especially provocative nature.  These included:  “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization”; “America did not become the mightiest nation on earth without distinct values and discrimination . . . . [o]ur survival depends on discrimination.”; “[I]f we don’t pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics (here, here, and here) will dominate (here, here, and here) [and not without a little help from the scum Bill Clinton]”; “[t]he only immigration reform imperative is preservation of White majority.” The faculty member (named Kehowski) also maintained a website expressing similar views.

The president and chancellor issued disclamatory emails disapproving of the messages, but declined to take disciplinary or corrective action against the faculty member, in spite of the urging of Latino staff.  They then filed suit, and the district court denied a motion for qualified immunity for the individual defendants.

Chief Judge Kozinski (a First Amendment lion by reputation), with Justice O’Connor and Judge Ikuta joining, reverses this decision with a loud shot across the bow that public employers may be limited in what steps they can take to arrest purely speech-based harassment.  Remarkably, to one schooled in harassment cases, the easy answer in this case was at hand — a set of three emails, no matter how uncivilized, probably would not amount to a severe or pervasive envionment of racial harassment. But the panel reaches over the pat answer instead to seize the raw nerve: that speech alone may be protected.

“Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive.”

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“This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities-sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments-have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale.”

The Chief Judge then lets loose with the opening salvo of a long fight to come: “[t]hese First Amendment principles must guide our interpretation of the right to be free of purposeful workplace harass ment under the Equal Protection Clause.” Citing, inter alia, the spead of 19th Century abolitionism by way of academia (because one always wants to side with history’s winners), the panel holds (with citations omitted) 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 intervention that plaintiffs seek. Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment. For instance, racial insults or sexual advances directed at particular individuals 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.’ But Kehowski’s website and emails were pure speech; they were the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot. Their offensive quality was based entirely on their meaning, and not on any conduct or implicit threat of conduct that they contained.”

The panel treads around the question of whether such speech by an employee’s manager might constitute evidence of discrimination, observing that no such case was presented here (the faculty member did not supervise the plaintiffs). It also holds that the proposed measures to limit the alleged harassment – cutting-off the individual’s access to email or shutting down the system entirely – also abraided First Amendment rights.

The panel remands for entry of an order granting qualified immunity, while also strongly hinting that the Equal Protection and Title VII claims were dead on the merits: “On remand, the district court shall reconsider its rulings on the remaining defendants’ summary judgment motions to ensure that they are consistent with our
ruling today.” And the Chief Judge gets in one more swing at the (in the judge’s view) would-be censors:

“It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. 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.”

Wow! and wow! 

How soon until harassers in the private sector start challenging the entire arena of harassment law, claiming that Title VII’s implied protection against hostile speech is itself constitutionally infirm?