Latino employees at an Arizona community college were understandably offended when a professor broadly distributed e-mail messages exalting the “superiority of Western Civilization” and deriding the contributions of nonwhite immigrants and Native Americans. But did the professor’s messages create a racially hostile work environment? The Ninth U.S. Circuit Court of Appeals (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) recently answered that question in the negative. The professor had constitutional free-speech rights with which the college couldn’t interfere.
Professor’s Views Offend
Professor Walter Kehowski teaches math at the Maricopa County Community College District. He also likes to share his opinions on other subjects via an e-mail distribution list through the college e-mail system.
With Columbus Day approaching, Kehowski sent out a mass message with the words “Dia de la raza” in the subject line. He raised the question “Why is the district endorsing an explicitly racist event?” in apparent reference to the fact that some Latinos observe a “day of the race” rather than celebrating Columbus Day. The following week, Kehowski elaborated: “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.”
Kehowski also quoted several articles, including one that described “democracy, human rights and cultural freedom” as “European ideas.” Another promoted a theory that “Native Americans actually committed genocide against the original white-skinned inhabitants of North America.” Yet another argued that “America did not become the mightiest nation on earth without distinct values and discrimination” and that “[o] ur survival depends on discrimination.”
When some criticized Kehowski as racist, he claimed that his statements instead were “realistic.” When a detractor claimed that “[m]ost thinking people believe that the European, Christian victory over the Moorish, Islamic (and African) culture in Spain is an example of a victory of a ‘backward’ culture over one that was more civilized,” Kehowski retorted: “[H]istory has answered quite convincingly which cultures were backward.” And he warned: “[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 ).”
The president of the college spoke out, saying that Kehowski’s message “hurts people, hurts the college, and is counter to our beliefs about inclusiveness and respect.” The president publicly reaffirmed the college’s values and philosophy about diversity. The chancellor of the college district also weighed in, noting that Kehowski’s views were “not aligned with the vision of the district.” But no steps were taken to silence or discipline Kehowski because of the college’s commitment to promote true academic freedom, including unpopular and even offensive viewpoints.
A group of Latino employees of the college sued, claiming that the college’s failure to prevent Kehowski from using its e-mail system to broadcast his messages created a hostile work environment. This, they asserted, violated both the race discrimination protections of Title VII of the Civil Rights Act of 1964 and their right to equal protection under the U.S. Constitution. The trial court threw out the Title VII claim against the college president and district chancellor but allowed the constitutional claim to proceed. The president and chancellor immediately appealed to the Ninth Circuit.
But He’s Protected by Academic Freedom
The Ninth Circuit acknowledged that the U.S. Constitution protects public employees against purposeful workplace harassment based on race. (Constitutional protections are generally not applicable in a private- sector work environment.) Thus, a public employer that becomes aware of such harassment should take reasonable steps to stop it. The employees contended that’s just what the college should have done. They said Kehowski should have been disciplined or dismissed or at least prohibited from using the college e-mail system to distribute his views.
Although the court recognized that the employees felt demeaned by Kehowski’s views, at the same time it recognized that the Constitution also provided him the right to express controversial views. That guarantee is particularly important in an academic setting. Scholarship flourishes best when a diversity of viewpoints may be presented freely, including some that may be unpopular.
The court weighed the employees’ rights to be protected from harassment against Kehoswki’s right to express his opinions. Offensive as his comments may have been, they weren’t directed personally at the employees. Instead, he was sharing his somewhat unusual perspective publicly, on issues of public concern. He didn’t supervise the employees, and thus, his views had no control over their employment. Although the college didn’t stop his messages, it didn’t endorse or adopt his sentiments.
Under all the circumstances, the Ninth Circuit found no equal protection violation. Summing up, the court stated:
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.
Rodriguez v. Maricopa County Comm. College , Case No. 08-16073 (9th Cir., May 20, 2010).
Rules May Be Different in Your Workplace
In the private sector, constitutional protections don’t have the same applicability. So if you’re a private-sector employer, you shouldn’t read this case as restricting you from controlling offensive messages that are sent via your e-mail system. In fact, if messages target a protected group, you likely have a duty to stop them. Unless principles of academic freedom and free speech tie your hands, you will want to take appropriate remedial action if your systems are being used to spread messages promoting racial bias.
The professor’s views, while some viewed them as unpopular/offensive, the court is correct in their position that freedom of expression should not be limited to the endorsements of any particular group. We all need to understand that we do not get to approve what can or cannot be express in accordance to our personal viewpoint. The university got trapped by its own broad policy of academia freedom of expression without realizing or anticipating the growth factor of technology. I’m fairly certain that in time past the professor’s rants would have been limited to grandstanding behind some podium in a general area of assemble. Or perhaps an article in the school newspaper or yet, posted on some bulletin board scattered on campus. Those venues would have limited exposures to the professor’s rants/viewpoints. With the advent of the current electronic age, his viewpoint has the potential to reach a great deal more. While using the internet as his distribution source exposes his viewpoints to potential millions, users would have to go to the site his viewpoints are posted on. It is a different matter if he uses his employers’ email system. His messages could reach his employers’ entire employment staff and beyond (venders, associates, etc) depending how he uses the email address tool. It is my opinion that he knew that everyone would receive his message, even if the recipients delete. This latter option usually occurs after some or part of the email message is reviewed prior to deleting thus exposing the user to his message. While some would argue that this method of delivery distinguished no particular group because it is sent to all, I beg the differ in that, based on the content of his message, he knew or should have known the offended audience would receive it and I would even conclude that he wanted it these individuals to see it just to prove a point to the group he believed disagree with viewpoints. The pose the question: Is the public employers’ email system is used as a venue to express employees personal views? It is my position that employers’ email system is to be used for business purposes only and not as platform for personal expression/views, especially those that may incite a hostile workplace environment. I don’t think any employee that signed on knew that they would be exposed to the ranting of someone personal views of bigotry and hatred of others race/cultures thru their internal communication network. If so, then why is there a need to use filters to screen contents from external/internal emails/internet usage in the business?
Cornell
Jefferson City, Missouri
Don’t you all think this is much ado about nothing? I delete “offensive” messages all week long. Many about sexually explicit photos, or devices for personal use as well as “personal ponts of view”. Just delete it! You have filters on your e-mail, so block him if you are offended by his perspective. I am tired of the whining by people that should exercise their right to maintain their dignity and maturity by handling these issues like adults. Make you own choices in life and move on.