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Ninth Circuit Holds Academic Liberty Pwns Workplace Harassment

by Christopher Harbin

My man crush on Judge Kozinksi got kicked up a notch after reading his slammin’ opinion in Rodriguez v. Maricopa County Community College Dist. Here, Kozinksi, joined by Ikuta and Sandra Day (sitting by designation), held that a professor’s racist emails to a college employee listserv on a matter of public importance was protected speech under the First Amendment and thus cannot constitute workplace harassment.

Walter Kehowski is a math professor at Maricopa County Community College.  Kehowski sent three racially charged-emails (presumably to a list-serv) that were received by all employees of the District with email access:  two challenging the District’s support of “Dia De La Raza”, which is celebrated by some Hispanics instead of Columbus Day and another calling for preservation of a White majority through immigration enforcement.   Plaintiffs sued the college and and its chancellor and president individually on Title VII and Equal Protection grounds.  In reversing the district court’s denial of qualified immunity, the Ninth Circuit held that they “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 entire opinion is pretty great, but my favorite part is Koz’s coup de grace:

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.
Everyone in the Academy should  frame this opinion and hang it on their office walls — the Ninth Circuit has taken a more pro-academic speech position than 99% of them.
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