Ninth Circuit Delivers Resounding Victory for First Amendment on Campus

By May 21, 2010

The United States Court of Appeals for the Ninth Circuit delivered a resounding victory for the First Amendment on campus in a stirring decision filed yesterday.

The case, Rodriguez v. Maricopa County Community College District, originated with e-mails sent by Professor Walter Kehowski, who teaches math at Glendale Community College in Arizona. The facts are straightforward: Using an e-mail listserv maintained by Maricopa County Community College District, Kehowski sent three e-mails espousing his views on immigration, the "superiority of Western Civilization," and other contentious issues to his fellow employees over the course of two weeks in October 2003. In response, several of Kehowski’s coworkers complained to District administrators, the president of Glendale Community College, and the District’s Governing Board about the content of Kehowski’s e-mails. Following these complaints and in the face of growing controversy, the Chancellor of the District issued a press release stating that while Kehowski’s views were "not aligned with the vision of our district," the District nonetheless refused to discipline him because doing so "could seriously undermine our ability to promote true academic freedom." The District did not take any action against Kehowski.

Faced with the District’s refusal to punish Kehowski for his e-mails, six of Kehowski’s Hispanic coworkers filed a complaint to the Equal Employment Opportunity Commission (EEOC) alleging racial and national origin discrimination by the District in violation of Title VII of the Civil Rights Acts of 1964, which prohibits workplace discrimination. The EEOC found that the complaint contained sufficient grounds to bring suit, and the six filed a lawsuit in federal district court in November 2004 against the District, the Governing Board, Glendale Community College President Phillip Randolph, and District Chancellor Rufus Glasper. The plaintiffs alleged the creation of a hostile work environment under Title VII and claimed that their civil rights had been violated under Sections 1981 and 1983 of the United States Code.

In a January 2006 ruling, a federal district court dismissed plaintiffs’ Title VII claim against Randolph and Glasper, holding that they could not be liable for Title VII violations as agents of the District, but allowed the rest of the claims to proceed. Glasper and Randolph filed an interlocutory appeal to the Ninth Circuit, asking the appellate court to overrule the district court’s determination that the two were not entitled to qualified immunity against plaintiffs’ Fourteenth Amendment Equal Protection claims.

Now, this tangled procedural history may sound slightly daunting to those Torch readers who are not attorneys, but the basic question presented to the Ninth Circuit on appeal was plain enough: Were Chancellor Glasper and President Randolph required by clearly established law to punish or prevent Kehowski from sending out his e-mails? Because the law has clearly established that employers who become aware of workplace harassment have a duty to act to end it, the answer to the question turns on whether or not Kehowski’s e-mails qualify as workplace harassment–and this is where the Ninth Circuit’s ruling yesterday is of such value to the First Amendment on campus.

In a unanimous opinion written by Chief Judge Alex Kozinski and joined by Circuit Judge Sandra Ikuta and Associate Justice Sandra Day O’Connor (retired from the Supreme Court and sitting in on the panel by designation), the Ninth Circuit determined that Kehowski’s e-mails–however disagreeable to some, most, or even all–constituted protected speech and not actionable workplace harassment. Chief Judge Kozinski wrote:

Plaintiffs suggest the district should have applied its existing anti-harassment policy to silence Kehowski as soon as the nature of his speech became apparent, either by revoking his access to the district’s technology resources or by warning him that further speech would lead to discipline. It’s true that a public employer’s refusal to enforce existing policies to stop unlawful harassment may violate the Equal Protection Clause. But Kehowski’s speech was not unlawful harassment. [Emphasis added.]

Not only was Kehowski’s speech not unlawful harassment, Chief Judge Kozinski wrote, it is in fact that very kind of speech—a charged, controversial, minority viewpoint—which most demands the First Amendment’s protection:

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. "There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause." Saxe, 240 F.3d at 204; see also United States v. Stevens, No. 08-769, slip op. at 7 (U.S. April 20, 2010) ("The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.").

Indeed, precisely because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate: Colleagues emailed responses, and Kehowski replied; some voiced opinions in the editorial pages of the local paper; the administration issued a press release; and, in the best tradition of higher learning, students protested. The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment. [Some citations omitted.]

And not only is Kehowski’s speech protected by the First Amendment, it is crucally important to protect this type of speech on college campuses, Chief Judge Kozinski wrote:

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. "Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die." Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)). We have therefore said that "[t]he desire to maintain a sedate academic environment . . . [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms." Adamian v. Jacobsen, 523 F.2d 929, 934 (9th Cir. 1975). [Emphasis added.]

Obviously, the Ninth Circuit’s ringing affirmation of the essentiality of the First Amendment on campus is music to FIRE’s ears, serving as yet another unmistakable confirmation of the arguments we make to colleges and universities time and again.

There’s a lot to examine here—including the opinion’s discussions of harassment law, the nature of an e-mail server, and academic freedom, as well as a recollection of FIRE’s previous defense of Professor Kehowski in a similar matter in 2007—and we’ll be taking a closer look at the opinion and its ramifications for FIRE’s defense of free expression on campus right here on The Torch in coming days. Stay tuned!