Overturning the ruling of a lower court, the United States Court of Appeals for the Ninth Circuit has granted Arizona’s Maricopa Community College District immunity from a lawsuit filed by a group of Latino professors who charged that college officials had not sufficiently disciplined a colleague who sent e-mails they viewed as discriminatory.
Chief Judge Alex Kozinski’s opinion  Thursday on behalf of a three-judge panel is a strong endorsement of academic freedom. It argues that “courts must defer to colleges’ decision to err on the side of academic freedom.” In doing so, the opinion defends the decision by Glendale Community College and Maricopa Community College District officials not to discipline or dismiss Walter Kehowski, a Glendale mathematics professor who “sent three racially charged emails” via the institution-maintained distribution list.
Maricopa and Glendale officials declined to comment on the decision, saying they needed more time to review it. Kehowski, however, praised the decision.
"I am very pleased to see that the 9th Circuit Court has upheld freedom of speech and academic freedom by explicitly recognizing the value of open inquiry in a free society," he wrote in an e-mail to Inside Higher Ed.
Kehowski’s first contentious message, sent in October 2003 to “every district employee with an e-mail address,” concerned Dia de la Raza, or “Day of the Race” -- a holiday that some Latinos celebrate instead of Columbus Day. In the e-mail, he asked, “Why is the district endorsing an explicitly racist event?”
A week later, Kehowski sent another e-mail that began, “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.” In the message he also quoted various articles, including one that asserts that “America did not become the mightiest nation on earth without values and discrimination” and argues that “[o]ur survival depends on discrimination.”
Another two days later, Kehowski sent the third message, in which he quoted a colleague’s e-mail calling his messages “racist.” He responded, “Boogie-boogie-boo to you too! Racist? Hardly. Realistic is more like it.” He also linked to a Web site he maintained  on the district’s server. On his site, Kehowski wrote that “[t]he only immigration reform imperative is preservation of White majority” and encouraged readers to “[r]eport illegal aliens to the INS.”
After great commotion among faculty members over Kehowski’s e-mails, Phillip Randolph, then president of Glendale, sent a note to everyone at the college.
“[T]he openness of our [e-mail] system … allows individuals to express opinions on almost any subject,” Randolph wrote. “However, when an e-mail hurts people, hurts the college, and is counter to our beliefs about inclusiveness and respect, I cannot be silent. In that context, I want everyone in the [college] community to know that personally and administratively, I support the District’s values and philosophy about diversity.”
Rufus Glasper, chancellor of the district, also weighed in on the matter at that time, in a press release stating that Kehowksi’s “message is not aligned with the vision of our district.” Still, he cautioned that any disciplinary action taken against Kehowski “could seriously undermine our ability to promote true academic freedom.”
Though many district employees “complained to the administration that Kehowski’s statements had created a hostile work environment,” according to latest ruling, the administration did not take disciplinary action against Kehowski, and “no steps were taken to enforce the district’s existing anti-harassment policy." With the aid of the Mexican American Legal Defense & Educational Fund , six Glendale employees sued the district, Glasper, and Randolph in November 2004, seeking damages for their lack of action against Kehowski. A federal district court sided with the plaintiffs  in 2008.
In overturning that decision Thursday, Kozinski summarized the crux of his court’s logic at the close of his opinion.
“It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good,” he writes. “But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the ‘delete’ button when they receive his e-mails. They may not invoke the power of the government to shut him up.”
All of the plaintiffs -- David M. Rodriguez, a librarian; Judy Gonzales Poggi, a child/family studies professor; Jose Mendoza, a coordinator for minority services; Frank Rivera, a mathematics professor; Mario Quezada, a custodian; and Esther Anaya-Garcia, a student services specialist -- chose not to comment on Thursday’s decision.
Diego Bernal, a MALDEF attorney representing the plaintiffs, had a restrained response to Kozinski’s opinion.
“We disagree with the court’s suggestions that racially or sexually harassing speech must be accompanied by an actual or perceived threat of conduct,” Bernal wrote in an e-mail. “Harassment through e-mail and other electronic mediums must be taken seriously by courts, and cannot be remedied by simply ‘pressing the delete button.’ ”
Bernal also noted that the decision did not address the “Title VII hostile work environment claims, brought by a class of District Latino employees,” adding that they remain in place against the Maricopa district and its governing board.
The circumstances dealt with in this case would not be the last time that Kehowski, who remains a tenured professor at Glendale, raised a ruckus there. In 2006, just before Thanksgiving, he sent an e-mail to the same list with a copy of George Washington's Thanksgiving Proclamation of 1789 , citing the blog of Pat Buchanan as his source. When some employees complained  that Kehowski’s link to Buchanan's blog constituted harassment because of the anti-immigration views contained on the site, he was placed on leave and his termination was recommended to the Maricopa board. With the help of the Foundation for Individual Rights in Education , Kehowski won an appeal  and was allowed to return to work.