Tuesday, December 18, 2012

Sixth Circuit: No First Amendment Right for University Employee's Op-Ed

In its opinion yesterday in Dixon v. University of Toledo, the Sixth Circuit addressed what it labeled a "narrow inquiry," articulating the issue as "whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing" is protected speech under the First Amendment.

The panel held that it was not.

Dixon was the "interim Associate Vice President for Human Resources at the University of Toledo"  when she wrote and published what the Sixth Circuit opinion describes as "an op-ed column in the Toledo Free Press rebuking comparisons drawn between the civil-rights and gay-rights movements."  Crystal Dixon's op-ed, Gay rights and wrongs: another perspective, published in the Toledo Free Press in 2008 (available here), did not identify her position although it did address some university policies.  It also approvingly discussed the ex-gay movement, quoted Biblical passages, and provided comparative economic data for gay men and lesbians - - - none of which the Sixth Circuit mentioned, but probably contributed to the University's decision to terminate her due to the "public position" she took that "in direct contradiction to University policies and procedures as well as the Core Values of the Strategic Plan which is mission critical."

479px-The_University_of_Toledo.svgThe Sixth Circuit affirmed the district judge's grant of summary judgment to the university. 

There was no question that the speech was on a matter of public concern, but a question whether her speech was protected under the Pickering balancing test, Pickering v. Bd. of Educ., 391 U.S. 563 (1968).  The Sixth Circuit precedent included a presumption that “where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.”

In its relatively brief opinion, the Sixth Circuit panel had little difficulty agreeing with the district judge that Dixon had substantial discretionary authority in her position and that her public statements conflicted with the university position's to extend civil rights protections to LGBT students and employees.

Dixon also raised an equal protection argument that other employees who made pro-LGBT statements and in one case attributing anti-LGBT sentiments to "religious bigotry" were not similarly terminated.  The court held that Dixon did not demonstrate that these employees were "similarly situated."

Indeed, it seems that the case turns on Dixon's highly placed position in Human Resources.

RR

http://lawprofessors.typepad.com/conlaw/2012/12/sixth-circuit-no-first-amendment-right-for-university-employees-op-ed.html

Equal Protection, First Amendment, Sexual Orientation, Sexuality, Speech | Permalink

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