Sunday, August 27, 2006
This case really highlights the difference between a just cause labor arbitration case and a civil rights action for deprivation of First Amendment rights in federal court.
A racist Nebraska state police trooper was reinstated by an arbitrator because "[he] was entitled to his First Amendment rights of free speech and that the state violated the troopers' contract, in part when it fired Henderson 'because of his association with the Knights Party ... and the Ku Klux Klan.'" It is unclear from the article on the case how much of a First Amendment analysis the arbitrator really did, especially since the role of external law in such arbitrations is less than dispositive, but clearly the focus was more on whether it was just to terminate him under the circumstances and not on whether his First Amendment speech rights had been actually violated.
On the other hand, a federal judge looking at this case under the First Amendment, might have said that the troopers' expression and association involved a matter of public concern, but it is hard to see how the Pickering balance would have favored the trooper since his involvement in the Klan, now public, undermines the credibility of the police force and will likely cause substantial disruption to the force.
Of course, now that an arbitrator has ruled in the trooper's favor, given the limited appeal rights involved with such arbitrations, the decision is unlikely to be overturned.
For another interesting view of this case, see the Continental Op's commentary at Reports from Poisonville.