Ninth Circuit Finds Arizona College Professor's Racist Remarks Are Protected By the First Amendment
At a time when cries of racism are at their peak in Arizona in the wake of recent controversial immigration legislation, the Ninth Circuit Court of Appeals handed down an opinion on May 20, 2010 which effectively protects an Arizona professor’s racially-charged remarks as free speech.
In Rodriguez v. Maricopa County Community College District, the Ninth Circuit considered several “racially-charged” e-mails which Professor Walter Kehowski sent out to all employees on a Maricopa Community College District distribution list. Kehowski’s e-mails included such statements as: “It’s time to acknowledge and celebrate the superiority of Western Civilization,” “Our survival depends upon discrimination,” and “The only immigration reform imperative is preservation of White majority.” Kehowski also sent an e-mail espousing the belief that Native Americans actually committed genocide against the “original white-skinned inhabitants of North America.”
The president of the college responded by voicing his disagreement and displeasure with Kehowski’s statements. However, the college did not do anything to stop Kehowski’s statements. A group of college employees filed suit, claiming that Kehowski’s statements created a racially hostile work environment, giving rise to liability on the part of the Maricopa Community College District for its failure to take reasonable steps to stop the alleged harassment. After the district court denied the defendants’ motion for summary judgment in part, the defendants petitioned for and were granted interlocutory appeal to the Ninth Circuit, largely based on their argument for qualified immunity for the college president and chancellor.
The Ninth Circuit issued a remarkable, strongly-worded opinion, which reads largely as a discourse on the value of the First Amendment. While recognizing that an employer made aware of unlawful harassment must take appropriate steps to investigate and curtail the harassment, the Ninth Circuit viewed Kehowski’s statements as pure academic speech, and the college’s decision as to how to handle the professor’s speech “demands substantial deference” from the court.
The Ninth Circuit emphasized that the government “may not silence speech because the ideas it promotes are thought to be offensive.” According to the Ninth Circuit, that is particularly true in the context of educational institutions: “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.” In fact, the Ninth Circuit declared, it is precisely that freedom of speech in an academic environment which proved pivotal to the success of abolitionist ideas during the Civil War. “Free speech has been a powerful force for the spread of equality under the law; we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.”
The Ninth Circuit reversed the district court’s denial of qualified immunity to the college president and chancellor, and remanded the case to the district court with instructions that the district court should reconsider its prior rulings to ensure they are consistent with the Ninth Circuit’s opinion.
