Workers can’t ‘invoke power of government’ to silence professor

Friday, May 21, 2010

PHOENIX — A federal appeals court ruling in a case involving a college professor’s racially charged e-mails says First Amendment rights mean people offended should delete the e-mails or engage the sender in debate, not “invoke the power of the government” to shut him up.

The 9th U.S. Circuit Court of Appeals ruling yesterday doesn’t outright end a lawsuit filed by Hispanic employees of the Maricopa County Community College District who were offended by the e-mails, but it provides guidance to the trial judge who will hear the case.

The lawsuit brought by employees against the Phoenix-based district contended it created a hostile work environment by permitting the e-mails.

The district in 2007 began proceedings that could have led to Glendale Community College math professor Walter Kehowski's being fired, but a subsequent agreement restricted his e-mail privileges and allowed him to return to the classroom.

The three e-mails in question were sent through the district’s employee distribution list. According to the 9th Circuit, the first e-mail included “Dia de la raza” in the subject line and asked, “Why is the district endorsing an explicitly racist event?” Almost a week later, the second e-mail said: “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.” Then two days later in the third e-mail, “Kehowski quoted an e-mail calling his messages ‘racist’ and said: ‘Boogie-boogie-boo to you too! Racist? Hardly. Realistic is more like it.’”

The 9th Circuit panel found in Rodriguez v. Maricopa County Community College Dist. that district officials did not violate employees’ right to be free of workplace harassment, saying: “The right to provoke, offend and shock lies at the core of the First Amendment,” especially on college campuses.

Chief Judge Alex Kozinski wrote for the unanimous three-judge panel: “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.”

Retired U.S. Supreme Court Justice Sandra O’Connor, sitting by designation, was also on the 9th Circuit panel.

Kehowski applauded yesterday’s ruling, telling Inside Higher Ed: “I am very pleased to see that the 9th Circuit Court has upheld freedom of speech and academic freedom by explicitly recognizing the value of open inquiry in a free society.”

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