Metropolitan News-Enterprise


Friday, May 21, 2010


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Court: Professor’s Racially Charged E-Mails Not Harassment


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled that an Arizona community college district’s alleged failure to respond to three racially charged e-mails sent by a professor to all of the district’s employees did not create a hostile work environment.

In a decision by Chief Judge Alex Kozinski, the panel concluded that Walter Kehowski’s missives did not constitute unlawful harassment since the content of his speech was what caused umbrage among his colleagues, and his expressed viewpoint, though unpopular, was entitled to protection by the First Amendment.

Kehowski, a math teacher, sent a series of e-mails over a distribution list maintained by the Maricopa County Community College District complaining that the Día de la Raza was a “racist event” and celebrating the arrival of Columbus Day as the “time to acknowledge and celebrate the superiority of Western Civilization.” The messages also contained links to a website maintained by Kehowski on the district’s web server which contained similar statements.

Opinions Condemned

The college’s president later circulated an e-mail condemning Kehowski’s opinions, and the chancellor of the district issued a press release stating that the professor’s “message is not aligned with the vision of our district” but explaining that disciplinary action against Kehowski “could seriously undermine our ability to promote true academic freedom.”

Several district employees lodged complaints with the administration over Kehowski’s statements, but no disciplinary action was taken against Kehowski.

A certified class of the district’s Hispanic employees later sued the district, its governing board and two district administrators alleging that the defendants failed to take appropriate steps to prevent Kehowski from disseminating harassing speech, which created a hostile work environment in violation of Title VII and the Equal Protection Clause.

U.S. District Court Judge Earl H. Carroll of the District of Arizona denied summary judgment to the school president and district chancellor on plaintiffs’ constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional and Title VII claims.

Interlocutory Appeal

The president and chancellor then brought an interlocutory appeal, contending that they were required to do no more than they did in the circumstances presented. Kozinski agreed, explaining that the district was not required to discipline or dismiss Kehowski since the proper object of an employer’s response is to deter and stop further harassment, not to punish the harasser.

He acknowledged that the 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 this “highlights the problem with plaintiffs’ suit,” which was that their objection was based entirely on Kehowski’s expressed point of view.

“The right to provoke, offend and shock lies at the core of the First Amendment,” the jurist opined, adding that “[t]his is particularly so on college campuses” since intellectual advancement “has traditionally progressed through discord and dissent” and colleges have “historically fostered that exchange.”

Entitled to Deference

For this reason, Kozinski posited, a college’s decision not to take action against an employee should be entitled to deference. “To afford academic speech the breathing room that it requires, courts must defer to colleges’ decisions to err on the side of academic freedom,” he said, expressing “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.”

Kozinski concluded that Kehowski’s website and e-mails were “the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot” and advised those offended by Kehowski’s ideas to “engage him in debate or hit the ‘delete’ button when they receive his emails” because they “may not invoke the power of the government to shut him up.”

Retired U.S. Supreme Court Justice Sandra Day O’Conner, sitting by designation, and Judge Sandra S. Ikuta joined Kozinski in his decision.

The case is Rodriguez v. Maricopa County Community College District, 08-16073.


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