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Where is the boundary between the free speech rights of public employees who express controversial or offensive ideas or opinions, and the authority of public employers to limit employee speech that is claimed to be inconsistent with policies prohibiting harassment or other discrimination on the basis of race, sexual orientation or other protected characteristics? This question can be particularly vexing at public colleges and universities.

A recent Sixth Circuit opinion out of Ohio held that public employers have the right to regulate the speech of administrators who occupy policy-making positions when they speak publicly on issues directly related to those policies. In Dixon v. University of Toledo, 702 F.3d 269 (6th Cir., Dec. 17, 2012), a court upheld the termination of an Associate Vice President for Human Resources after she wrote an opinion in a newspaper arguing that homosexuals were not “civil rights victims.” This article directly contradicted the University’s policies on diversity and equal opportunity. The court’s holding in Dixon essentially placed the employee’s speech outside of First Amendment protection.

Background

In April of 2008, The Toledo Free Press published an editorial titled “Gay rights and wrongs,” comparing the civil-rights movement to the gay-rights movement. The article itself noted that one University of Toledo campus offered domestic partner benefits and the other did not.

Plaintiff, the Associate Vice President for Human Resources at the University, felt the need to respond and published a response in the newspaper in which she objected to the idea that homosexuals are “civil rights victims” and asserted that homosexuality is purely a choice. Plaintiff identified herself as “an alumnus of the University of Toledo’s Graduate School, an employee and business owner” and signed only her name. She did not mention her title within the University, and because she intended the piece to be a personal opinion from a citizen, she did not inform her employer that she was writing the opinion.

The University’s president responded by having published an opinion piece repudiating Plaintiff’s opinion on behalf of the University and informing the public that Plaintiff was a University human resources officer. Plaintiff was immediately placed on administrative leave. At the hearing on her employment status, Plaintiff argued the article was a personal opinion and she wrote as a private citizen. Plaintiff was terminated and she subsequently filed suit claiming her First Amendment speech rights had been violated. The courts, however, sided with the University.

First Amendment Retaliation Claim

Plaintiff claimed the University fired her in retaliation for exercising free speech rights protected by the First Amendment. In a First Amendment Free Speech employment retaliation claim, a plaintiff must show (1) the speech involved matters of public concern; (2) the state employer’s interest as an employer, in promoting the efficiency of the public services it performs through its employees does not outweigh employee’s desire to contribute to public debate like any other citizen, and; (3) the speech was not made pursuant to the duties of employee’s employment. The University did not dispute the fact that the opinion involved a matter of public concern. Thus, the court’s analysis focuses on the remaining two elements of a retaliation claim.

Balancing Employer's v. Employee’s Interests

The court agreed with Plaintiff that because she did not identify herself as a University official in the article, nor was she writing the article pursuant to any of her duties as a University official, the opinion was purely personal. Thus, the case turned on whether Plaintiff’s free speech rights outweighed the University’s interest as an employer. The University argued that Plaintiff’s speech was directly related to her job as a policymaker at the University and pointed to prior case law holding that when policy-making employees “speak on job related issues in a manner contrary to the position of [their] employer” they are insubordinate and a presumption arises that the balance weighs in favor of the employer. The Court agreed, noting that Plaintiff testified she was responsible for employment decisions, such as hiring and firing, and she had significant authority to implement policies.

Lessons for California Public Colleges and Universities

Because this case was decided by the Sixth Circuit, it is not binding in California or in the Ninth Circuit. It is, however, instructive, and confirms that courts recognize the interest of public employers in preventing a policy-making employee from contradicting the policies of the employer, even if speaking as a private citizen.

The case stands as an interesting counterpoint to a Ninth Circuit decision from 2010, Rodriguez v. Maricopa County Community College District, 605 F.3d 703 (9th Cir. 2010). There, an instructor used an email distribution list maintained by a public community college district to send racially charged emails asserting, among other things, “the superiority of Western Civilization.” The district’s Chancellor issued a press release stating that the instructor’s emails were “not aligned with the vision of our district,” but explaining that the district would not take disciplinary action due to considerations of academic freedom. Other employees sued the district for employment discrimination, asserting that the failure to discipline the instructor created a hostile work environment. The Ninth Circuit held that the instructor’s emails were protected by the First Amendment and so the district’s decision not to discipline him could not give rise to liability. Important to the court’s conclusion in that case were the facts that the instructor’s emails were directed to the college community as a whole (rather than insults directed at any particular individual), the instructor did not have supervisory authority, and the college and district administration did not in any way endorse the emails.

Public employee free speech cases are very fact-specific, and the particular content and context of the speech at issue are critical to the analysis. In the Rodriguez case, the Ninth Circuit stated that judicial deference to academic liberty is a “special concern” of the First Amendment and also commented, “The right to provoke, offend and shock lies at the core of the First Amendment.” Moreover, the “Liberty of Speech” clause of the California Constitution is viewed as broader than the right of free speech provided in the First Amendment, which can affect the extent to which a court may find speech in California to be protected. Still, as the Dixon case illustrates, the right of free speech is not without limits for public employees, even when speaking in their personal rather than official capacity, and particularly when they occupy policy-making positions.