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Appeals court: HR administrator's controversial op-ed not protected speech

Free Speech Limited for HR Official
December 18, 2012

The University of Toledo was within its rights in firing an administrator who expressed what some interpreted as anti-gay views in a local newspaper, an appeals court ruled Monday.

In the U.S. Court of Appeals for the Sixth Circuit opinion, Judge Karen Nelson Moore wrote that the unanimous decision by the three-judge panel was based on a “narrow inquiry: 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.”

In finding that Crystal Dixon was a policy maker who engaged in speech on a policy issue related to her position, and that the university’s interests in upholding its equal opportunity polices outweighed her interests in commenting on a matter of public concern, the court affirmed a lower court’s ruling that the administrator did not engage in protected speech in a 2008 opinion piece in the Toledo Free Press.

In that piece, written in response to an earlier editorial that compared gay rights to civil rights, Dixon objected to the comparison because she believed that homosexuality, unlike skin color, was not an immutable characteristic.

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."

Dixon, then associate vice president of human resources at Toledo, did not mention her title in her op-ed. But backlash grew as faculty members circulated it around campus, and President Lloyd Jacobs soon put Dixon on paid administrative leave. She was fired several days later, following a hearing in which she denied that her personal views affected her hiring practices, noting that she had hired one individual whom she believed to be gay despite “observing a questionable exchange between he and his male roommate in the parking lot one day,” according to court documents.

Alleging First Amendment and other violations, Dixon sued Jacobs and the university. A federal judge ruled in favor of the university in February. That decision was framed heavily around Dixon’s role as an administrator, rather than a faculty member or any other kind of employee without the same hiring and firing authority. (A similar case came to light this year, when Gallaudet University put its chief diversity officer on paid administrative leave for signing a petition against gay marriage rights in Maryland.) Monday’s ruling upholds the February decision.

In an e-mailed statement, Jacobs said the university was pleased with the court’s decision and that it continues to be “committed to providing a safe, welcoming environment for all students, faculty, staff, patients and visitors, regardless of race, creed, age, gender, sexual orientation or physical ability.”

As for the asymmetries in benefits packages for university employees mentioned in the original editorial comparing gay rights to civil rights, which Jacobs promised to address in his own 2008 opinion piece in the Toledo Free Press rebuking Dixon’s views, a university spokesman said they had been corrected. “[Toledo] offers domestic partner benefits to opposite-sex and same-sex couples that are identical to benefits for married couples,” he wrote in an e-mail.

Robert Salem, a board member of Equality Toledo, a local civil rights organization, and a clinical law professor at the university, said the group was happy with the court’s ruling, which “stands for basic fairness. We felt that the human resources director in a public institution needs to do their job for all employees and all perspective employees.”

Dixon, employed as a human resources director for the City of Jackson and Jackson County, Mich., since 2011, did not respond to requests for comment.

Her lawyer, Robert Muise, said he was disappointed by the ruling and would file a petition for a hearing before the full Sixth Circuit court and possibly for a review by the U.S. Supreme Court.

In addition to the court's decision to cite a patronage law as precedent, which he found problematic in an employment case, Muise said the ruling demonstrated a “slow erosion of First Amendment values.”

It’s troubling that in a university setting – “the market place of ideas” – Dixon “couldn’t express her beliefs without running the risk of getting fired by the government,” he said.

 

 

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