EAllusion wrote:One of the 3 judges who ruled in the case was a GWB appointee. The precedent they were applying came from an 8-1 Supreme Court decision. The ever creeping left apparently is everywhere. Their decision was on fairly solid ground given controlling precedent, which is why it was a unanimous decision. I disagree with that ruling because I take a more liberal view of the first amendment that is, ironically, opposed by the kind of justices you express support for. "The Left" has gotten to Scalia, among others, it seems.
the author was a Reagan appointee, of the other 2, one was appointed by Bush I and the other by Clinton. For those interested in the polticization of the federal bench.
Rose was a fracus with the Commissioner of the State Police when he said he wanted to fire his assistant against the will of the Governor and another more immediate supervisor. Instead the Commissioner was fired and sued saying his statement that he wanted to fire his assistant was protected by free speach.
The Commissioner sued for his job back and lost.
Seems like an easier case to decide than Dixon.
"And the human knew the source of life, the woman of him, and she conceived and bore Cain, and said, 'I have procreated a man with Yahweh.'" Gen. 4:1, interior quote translated by D. Bokovoy.
I can't decide which I like least. Droopy's one word sentences or Droopy's run on sentences.
He could work for a happy medium.
"And the human knew the source of life, the woman of him, and she conceived and bore Cain, and said, 'I have procreated a man with Yahweh.'" Gen. 4:1, interior quote translated by D. Bokovoy.
--Should the issue of whether a public employee's speech is protected be a question of law, a question of fact, or a mixed question of fact and law? Please explain the reasoning behind your answer.
--Please explain, in your own words, how the concept of stare decisis subverts the rule of law.
--If the vice president of human resources at a public university, whose duties included addressing student complaints about religious discrimination, wrote a letter to the editor explaining why the Mormon Church is a cult, you would be okay with that, right?
Question for Kevin Graham:
--Since you believe that "hate speech" is not entitled to First Amendment protection, the government can ban you from criticizing Mormonism. Right?
It seems to me that the courts are struggling here with a difficult question: under what circumstances should a government employee have rights that a private employee doesn't have? Functionally, there is little, if any, difference in the employer-employee relationship at a private university versus a public university. I think it's difficult, from a constitutional perspective, to justify giving the employe at the public institution greater rights than the employee at the private institution.
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951
Brad Hudson wrote:It seems to me that the courts are struggling here with a difficult question: under what circumstances should a government employee have rights that a private employee doesn't have? Functionally, there is little, if any, difference in the employer-employee relationship at a private university versus a public university. I think it's difficult, from a constitutional perspective, to justify giving the employe at the public institution greater rights than the employee at the private institution.
That gets into Dixon's equal protection claim. She wasn't just a rank-and-file university employee. Part of her job was to uphold the university's policy that homosexual students are entitled to civil rights just like everyone else is. The court explained that the scope of the employee's duties is an important factor in determining whether the private speech is protected, or whether it undermines the policies the employee is supposed to carry out.
The comparison with Bresnahan, although intuitively more germane, fails because it is unsupported by sufficient evidence in the record. The evidence proffered by Dixon establishes that in December 2007, Bresnahan and her partner "became the first same-sex couple to file under the city's new domestic-partner registry." R. 60-14 (Bresnahan Article at 1) (Page ID #523). After she and her partner filed under the registry, Bresnahan was interviewed by the Toledo Blade and made the following statement regarding opposition of others to the registry: "It's their religious beliefs, and bigotry in the name of religion is still bigotry." Id. at 1-2 (Page ID #523-24). Bresnahan was identified as Vice Provost of the University in the article, yet she was not terminated or disciplined as a result of this statement. Id. at 1 (Page ID #523); R. 60-5 (Jacobs Tr. at 218:15-24) (Page ID #476).
Importantly, however, the record is silent as to the responsibilities and authority of the vice-provost position at the University. "Inevitably, the degree to which others are viewed as similarly situated depends substantially on the facts and context of the case." Loesel v. City of Frankenmuth, 692 F.3d 452, 463 (6th Cir. 2012) (internal quotation marks omitted). In this case, the critical inquiry centers on Dixon's role at the University. Therefore, in order to determine whether Bresnahan and Dixon are similarly situated, we must at the very least have before us a description of the duties inherent in Bresnahan's role at the University. Without such evidence, we cannot engage in an accurate comparison of the two individuals for the purposes of summary judgment in this case. Although Dixon has identified another administrator at the University who also spoke publicly on the issue of LGBT rights, Dixon has not shown that Bresnahan is similarly situated. We thus affirm the district court's grant of summary judgment in favor of the defendants on the equal-protection claim.
Brad Hudson wrote:It seems to me that the courts are struggling here with a difficult question: under what circumstances should a government employee have rights that a private employee doesn't have? Functionally, there is little, if any, difference in the employer-employee relationship at a private university versus a public university. I think it's difficult, from a constitutional perspective, to justify giving the employe at the public institution greater rights than the employee at the private institution.
By the way, Brad, do you concede Droopy's assertion that Federal Rule of Civil Procedure 56 is a leftist scheme that was invented to deprive religious people of their constitutional rights? I know I certainly found his observation to be compelling.
Brad Hudson wrote:It seems to me that the courts are struggling here with a difficult question: under what circumstances should a government employee have rights that a private employee doesn't have? Functionally, there is little, if any, difference in the employer-employee relationship at a private university versus a public university. I think it's difficult, from a constitutional perspective, to justify giving the employe at the public institution greater rights than the employee at the private institution.
By the way, Brad, do you concede Droopy's assertion that Federal Rule of Civil Procedure 56 is a leftist scheme that was invented to deprive religious people of their constitutional rights? I know I certainly found his observation to be compelling.
Well, I attended law school at a bastion of evil leftiness, and I confess that most of our classes consisted of devising ways to screw people out of their religious rights through superficially harmless procedural rules. We hid the nastiest stuff in Rule 6. No one has caught on to that one yet.
I have Droopy on ignore. Did he really say that?
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951
Darth J wrote: That gets into Dixon's equal protection claim. She wasn't just a rank-and-file university employee. Part of her job was to uphold the university's policy that homosexual students are entitled to civil rights just like everyone else is. The court explained that the scope of the employee's duties is an important factor in determining whether the private speech is protected, or whether it undermines the policies the employee is supposed to carry out.
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Sure, but let's say it wasn't part of her job. Suppose she was employed at Stanford and the editorial was not related to her job duties. As a constitutional matter, couldn't Stanford fire her based on what she said in the column? Why should it be different if we change the employer to UCLA? I just think it gets tricky when a public entity is functionally acting in the same capacity that private entities do. Another example: I get my electricity from a public utility. A few miles away, people get their electricity from a private utility. Would it make sense to give the customer service person I call constitutional rights to free speech that the customer service person working for the private utility does not share?
It seems pretty tricky to me, and I'm not surprised the courts struggle with it.
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951
Droopy wrote:This is an excellent example of the destruction of the rule of law by law, and, specifically, by the replacing of questions of principle by nitpicking questions of process and procedure.
No one has caught on to that one yet. 
