Sunday, August 27, 2006

Arbitrator Reinstates Klan State Trooper

Car_police_3 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.

PS

https://lawprofessors.typepad.com/laborprof_blog/2006/08/arbitrator_rein.html

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Comments

Nebraska Attorney General Jon Bruning quote:
This is not Birmingham [Ala.] This is not 1960," he said. "We have no interest in having racists in our ranks."
Singling out Birmingham, AL as the definition for racism immediately destroys the credibility of Nebraska's Attonrney General. For an educated approach to an issue of free speech, I think one must be totally fair in their analysis and treatment of the perceived offensive speech or action. While it is common knowledge that AL was at the center of civil rights action (violation of laws for just causes), when careful analysis is used the hypocricsy of looking down ones nose at AL and their racism while hiding behind defacto segregation to also practice racism is laughable. Both forms of segregaion, dejure and defacto result in the denial of rights to some and leads to the same outcome for those who are singled out for segregation away from the majority populace. Another example of the hypocrisy: a careful study of history will reveal that during the era of the Civil War it was common practice for northern states to grant "certain" rights to blacks but not full rights as compared to whites. So obviously the definition of racism has changed with time.
I am not necessarily defending the right of the trooper to belong to the KKK. I am only saying that a state legal leader should be careful in branding of people without an official legal definition of some term that the person is supposdedly in violation. I have lived in the deep south for 64 years and have never witnessed a KKK rally or personally known a person who was a member of the KKK. While I have read about the KKK and their beliefs and want no part of them, I must believe that they like many other radical groups have a right under the 1st Amendment to exist. Seems to me that the only groups that should come under the government magnifying glass are those who are involved in active violence, denial of rights and/or as part of their belief system believe in the violent overthrow of America.

Posted by: Walt | Sep 1, 2006 6:20:38 AM

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