First Amendment Trumps Workplace Issues

May 24, 2010 ( – When the First Amendment collides with employees’ right to a non-harassing workplace, the free speech issue has to be given more weight, a federal appellate court ruled.

The 9th U.S. Circuit Court of Appeals made that assertion in a case involving a controversial math professor at an Arizona community college who, according to the court’s ruling, distributed a series of e-mails to his colleagues some interpreted as being anti-Hispanic.

A group of Hispanic employees of the Maricopa County Community College District sued the district and school officials, charging Walter Kehowski’s e-mails sent on the school’s e-mail system contributed to a hostile workplace. School officials did not make an effort to fix the situation when they complained nor did the officials enforce the school’s anti-harassment policy, the plaintiffs charged.

For example, one e-mail had “Dia de la raza,” or Day of the Race, which is celebrated by some Hispanics instead of Columbus Day, as its subject line and asked, “Why is the district endorsing an explicitly racist event?”  Another said the “only immigration reform imperative is preservation of White majority.”

A lower court judge refused to throw out the plaintiffs’ suit and the defendants appealed.

“Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal,” the appellate judges contended.” 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.”

The appellate panel concluded: “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.”

The ruling is available here.