Legal View: Professor's inflammatory e-mails protected by First Amendment

By Pat Murphy

Daily Record Newswire

So much for the notion that the college campus is a forum for the free flow of ideas.

Those who speak their mind are more likely to face retribution than a cogent argument poking holes in whatever proposition they happen to be advancing.

And more and more often retribution comes in the form of a lawsuit, as found out by an Arizona community college that some felt didn’t act sternly enough in responding to a professor’s politically incorrect remarks that offended its Hispanic employees.

Last week, the 9th Circuit with the help of retired Justice Sandra Day O’Connor brought a measure of sanity back to higher education, rightfully concluding that the First Amendment protects offensive speech — even when it occurs in the hallowed halls of academia.

Dia de la Raza
As an alternative to Columbus Day, some Hispanics celebrate Dia de la Raza, which translates as “Day of the Race.”

In the interest of multiculturalism, the Maricopa County Community College District in Arizona gives some deference to the anti-Columbus Day.

This apparently didn’t sit well with Professor Walter Kehowski, a math teacher for the district. The professor sent three racially-charged e-mails over a distribution list maintained by the school. Every district employee with an e-mail address received a copy.

Under the heading “Dia de la raza,” Kehowski’s first e-mail asked, “Why is the district endorsing an explicitly racist event?”

A week later, Kehowski sent an e-mail proclaiming, “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.”

Kehowski evidently received some unkind responses to that e-mail because he salvoed back with a third message two days later that began, “Ad hominem attacks are the easiest to launch and the most difficult to defend against.”

After reviewing some history the upshot of which was to bolster his belief in the superiority of Western Civilization, Kehowski concluded:

[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) [and not without a little help from the treasonous scum Bill Clinton].”

Knocking Bill Clinton apparently was the final straw. A group of the district’s Hispanic employees wanted Kehowski’s head on a platter and they complained to the district’s chancellor and president.

Now, school administrators had roundly condemned Kehowski’s e-mails and dutifully reaffirmed their commitment to diversity.

But the Hispanic employees wanted Kehowski disciplined and, when he wasn’t, sued the chancellor and president for creating a hostile work environment in violation of Title VII and the Equal Protection Clause.

According to the employees, the school administrators failed to take appropriate steps to prevent Kehowski from sending them harassing e-mails and from disseminating harassing speech via his district-hosted website.

Freedom of speech prevails
The employees Title VII claim didn’t go far because a U.S. District Court promptly agreed with the school chancellor and president that they could not be liable as agents of the plaintiffs’ employer.

The 9th Circuit yesterday decided that the school administrators were entitled to qualified immunity with respect to the equal protection claim.

And the panel that decided this case was no ordinary panel, no siree Bob.

Former Justice Sandra Day O’Connor sat by designation and the opinion was authored by 9th Circuit Chief Judge Alex Kozinski.

And Judge Kozinski came right to the nub of the matter: the employees were asking government officials to restrict Professor Kehowski’s First Amendment rights.

The judge said that the First Amendment “demands substantial deference to the college’s decision not to take action against Kehowski. The academy’s freedom to make such decisions without excessive judicial oversight is an ‘essential’ part of academic liberty and a ‘special concern of the First Amendment.’”

Concluding with a flourish, Kozinski wrote that 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 e-mails. They may not invoke the power of the government to shut him up.” (Rodriguez v. Maricopa County Community College District)

Good stuff, that is.

We can only hope that the educators and students in the country’s universities will take that cue to heart and grow a thicker skin when it comes to the real or perceived insensitivity of others.