Incidents of Protected Speech from Years Ago Don’t Transform Thanksgiving E-mail into Harassment

By May 9, 2007

For many years now, Walter Kehowski has been a vocal opponent of multiculturalism, diversity education, illegal immigration, and affirmative action. He teaches in the Maricopa County Community College District (MCCCD), which has a large number of Hispanic students and faculty members, many of whom find his views abhorrent. As a result, Professor Kehowski has had several run-ins with the faculty and administration of the District. These prior conflicts are now being cited by some as evidence that this whole “George Washington” debacle is more complicated than it seems at first blush, and that perhaps the District’s treatment of Professor Kehowski is not so outrageous after all. But the truth is, the situation really illustrates what free speech is all about, and I think that it is important to discuss it at some length here.
 
Back in October 2003, Movimiento Estudiantil de Aztlan, a Latino student group, organized a “Dia de la Raza” (translation: “Day of the Race”) event at Glendale Community College, where Kehowski is a professor. The event materials explained:
An affirmation of Latinas/os’ indigenous roots, our desires not to assimilate into mainstream society, or ancestors’ struggle against colonization and genocide, Dia de la Raza resists the popularly celebrated “Columbus Day” and serves as a remembrance of the everyday struggles for survival and memory enacted by oppressed people around the World.
Professor Kehowski objected to the college hosting what he deemed “an explicitly racist event,” and sent an e-mail saying as much to the DL-ALL-MARICOPA distribution list, which went out to all District faculty. Over the next several weeks, Professor Kehowski sent a total of three e-mails to that distribution list describing his views on various political issues, including diversity and multiculturalism in higher education and in America generally, and on what he saw as the superiority of Western civilization. His e-mails included links to other articles on the same topics as well as to Kehowski’s personal webpage, which contained additional political statements and links. At that time, Kehowski’s conduct did not violate any of the college’s technology usage policies, which back then permitted faculty to use the e-mail system freely to discuss non-work-related matters. In light of this incident, however, the District decided it would be better to keep personal views off of the public e-mail system, and revised its policies accordingly.
 
Nonetheless, a group of MCCCD employees filed a federal lawsuit against MCCCD in November, 2004, alleging that Kehowski’s expressions of opinion in three e-mails and on his personal webpage constituted unlawful “hostile environment” harassment for which the district should be held responsible. This lawsuit is still ongoing; the court is currently considering the District’s motion for summary judgment. Moreover, in 2005, Kehowski again ran afoul of the administration when a faculty member was offended by an e-mail Kehowski sent from his personal e-mail account, again expressing his views on immigration and multiculturalism. He was briefly placed on administrative leave before returning to teaching. None of Kehowski’s past actions constituted harassment, which requires conduct severe and/or pervasive enough to create an objectively hostile work environment, and the efforts to characterize his behavior as such are attempts to silence his unpopular opinions.
 
While all of this perhaps sheds some light on why the District has reacted so disproportionately to Kehowski’s latest e-mail, it by no means justifies the District’s conduct, which includes misusing harassment regulations and selectively enforcing its technology usage policies. Which brings me to an important point: If the District enforced its current technology usage policies uniformly, FIRE would not object to Kehowski being disciplined in some reasonable way for his George Washington e-mail, which was clearly not work-related. But the District cannot, consistent with the First Amendment, apply its technology usage policies only to controversial points of view or controversial people. That is viewpoint discrimination. And that is precisely what the District has done in this case, since we know for a fact that numerous other faculty members have sent out similarly non-work-related e-mails over the same distribution list and received no punishment. Finally, firing a tenured professor is a radical step. We know of no other case where a tenured professor has been so severely punished for such a minor e-mail infraction.
 
With his vocal expression of unpopular viewpoints, there is no question that Kehowski has long been a thorn in the administration’s side. But this is precisely why the First Amendment exists: to protect the right to hold and voice unpopular opinions, free from government interference or the inevitable tyranny of the majority. Employees of public institutions have a First Amendment right to speak out on matters of public concern—which immigration, affirmative action, and multiculturalism undoubtedly are. Kehowski’s three e-mails—which did not target any employees in particular, and contained nothing more than the expression of admittedly controversial viewpoints—certainly did not constitute actual harassment. As almost goes without saying, nor did the Thanksgiving Day greeting he sent out this past November.
 
So, as in almost every case, there is additional backstory here—backstory revealing that Walter Kehowski is a controversial figure whose strong opinions the MCCCD would much rather not have to deal with. But that in no way changes the fact that the District is now trying to fire him for nothing more than engaging in constitutionally protected speech. As we have said time and again in this space, the First Amendment exists to protect unpopular expression like Walter Kehowski’s. Rarely does anyone try to censor uncontroversial speech—which is almost certainly why, for example, the faculty member who sent out a message over the distribution list about helping Ugandan orphans did not face any retribution. As this case illustrates, it is controversial speech—often made by controversial people—that must be jealously protected. And that’s precisely why FIRE will continue to defend the rights of Walter Kehowski until the MCCCD lives up to its obligations under the First Amendment.

Schools: Glendale Community College