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Court finds HR director's free speech rights were limited

A Dismissal Upheld
February 10, 2012

The University of Toledo was within its rights when it fired its head human resources administrator in 2008 after she wrote a newspaper column in which she said that gay people do not need the protection of civil rights laws, a federal judge ruled this week.

In his ruling, Judge David A. Katz found that the nature of the official's position meant that she did not have First Amendment protections from being punished for expressing her views in a public forum. The "plaintiff's interest in making a comment of public concern is clearly outweighed by the university's interest as her employer in carrying out its own objectives," Judge Katz wrote.

The ruling focuses on the rights of Crystal Dixon as an administrator -- and none of the rationales outlined in the decision would apply to a faculty member or many other employees at the university who did not have positions of authority. While federal courts historically have recognized strong First Amendment rights for employees of public colleges and universities, this case illustrates an area where those rights may be limited: when an official takes a public stand contrary to the university's views on an area of her responsibility. (The university's policies specifically bar discrimination based on sexual orientation.)

The ruling comes amid a debate -- with court rulings going in multiple directions -- over the ability of public universities to enforce professional standards that require those being trained as counselors to be supportive of people with different sexual orientations. Many academics say that it is their responsibility to enforce such standards, while students who have been kicked out of two graduate programs have argued that their freedom of expression was compromised by being given the choice of being supportive of gay clients or leaving their programs.

In the Toledo case as well, Dixon claims that her rights of free expression were violated in ways that limited her ability to make anti-gay statements. Unlike the disputes over the counseling programs, however, the Toledo decision was based on the rights of public entities to dismiss administrators, not students.

Dixon -- who had been associate vice president of human resources at Toledo -- set off the controversy when she wrote a column in The Toledo Free Press in which she asserted that gay people can change their sexual orientation and questioned how gay people could ever be considered "civil rights victims." Wrote Dixon: "As a black woman who happens to be an alumnus of the University of Toledo's Graduate School, an employee and business owner, I take great umbrage at the notion that those choosing the homosexual lifestyle are 'civil rights victims.' Here's why. I cannot wake up tomorrow and not be a black woman. I am genetically and biologically a black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle." She went on to talk about "irrefutable" data showing higher-than-average salaries for gay people, and to discuss the fate of those who "violate God's divine order."

While Dixon did not give her University of Toledo job title in the piece, her role as chief HR officer at the university made her well-known to employees who saw the piece and circulated it. Given the role of the human resources department in promoting equal opportunity and a welcoming environment for all, advocates for gay employees questioned how the division could be led by someone who expressed such views. When Dixon was subsequently dismissed, she charged in her suit that hers were the rights being violated.

But Judge Katz ruled that she was not entitled to First Amendment protections from dismissal, given the nature of her job and the nature of her comments. He noted that her authority over hiring and firing decisions, and over various personnel policies, made her an administrator with significant power. And that made her comments problematic, he said.

"Plaintiff stated that she did not think homosexuals were civil rights victims," he wrote. "Not only does this statement directly contradict the university's policies granting homosexuals civil rights protections (such as the equal opportunity policy), but as [a job] appointing authority, plaintiff was charged with ensuring that the university maintained those protections in employment actions." Therefore, he added, her statements could be viewed as insubordination. Further, Katz noted that the university was reasonable in assuming that Dixon's statements could cause damage to the institution, by undermining the recruitment of gay employees, or by making current gay employees feel that their rights were not respected.

As to Dixon's claim that she was being punished for having religious views that gay people do not deserve protection, Judge Katz rejected that as well, noting that Dixon would not have been fired for having those views alone. But writing about them in a newspaper, he wrote, was more than thinking a particular thought. "In other words, contrary to her assertion, she was not terminated due to defendants discovering her views, but due to the public discovering them," he wrote.

Dixon's lawyer did not respond to requests for comment. But the Thomas More Law Center, which backed Dixon's suit, previously issued a news release calling the university's treatment of Dixon "a despicable double standard." The release said that the university was sending a "message to Christian employees: Shut up."

 

 

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