6th Circuit: Diversity Trump's religious freedom

[_lulu]

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.

<snip>

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.

It is tricky. I'm wondering how much Pickering compelled the decision in Rose. I took a look at Rose but not Pickering. Rose looks like its pretty tight, policy making employee, government wins.

How far down the food chain do you have to go before a government employee can say whatever she want on a public issue?

Can a university janitor say he's opposed to Affirmative Action?

The plaintiff was in interim associate (that might be in her favor) vice president (kind of hard to get around those 2 words even before you get to her job description.)

Can the head of a state EEOC say he's opposed to equal pay for equal work like the good professor Ralph Hancock and keep her job?

I'm going through "there are no neutral legal principles phase." Like some analysts of O'Connor and Bader Ginsburg, you push it as far as you think you can away with and then make the best argument you can for your position.

[_3sheets2thewind]

<snip>

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.

Not that tricky at all. Her claims failed because her lawyers failed. She likely would have won on the eqaul protection claim had her lawyers used some due diligence. For her equal protection claim her lawyers failed to provide a shred of evidence to a key element of a equal protection claim.

A public entity must follow the Constitution, a private entity is not so required.

A public employee does not surrender Constitutional Rights as a condition for public employment; however there is some limitations.

[_lulu]

Not that tricky at all. Her claims failed because her lawyers failed. She likely would have won on the eqaul protection claim had her lawyers used some due diligence. For her equal protection claim her lawyers failed to provide a shred of evidence to a key element of a equal protection claim.

meh. That's a pretty bold statement unless you have read the whole record on appeal and the plaintiff's appeal briefs. Decisions say all sorts of things that aren't necessarily true.

But as the decision notes, before she has much of a 14th amendment claim, she has to show that she has a 1st amendment claim which under Pickering and Rose the court decided she didn't.

As to disperate treatment under equal protection, you assume that there had been disperate treatment and plaintiff's attorneys just failed to find it. Maybe it wasn't there to find.

Finally, this seems to be more of a Free Speech case than a Free Exercise case.

[_Darth J]

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.

It is tricky. I'm wondering how much Pickering compelled the decision in Rose. I took a look at Rose but not Pickering. Rose looks like its pretty tight, policy making employee, government wins.

How far down the food chain do you have to go before a government employee can say whatever she want on a public issue?

Can a university janitor say he's opposed to Affirmative Action?

The plaintiff was in interim associate (that might be in her favor) vice president (kind of hard to get around those 2 words even before you get to her job description.)

Can the head of a state EEOC say he's opposed to equal pay for equal work like the good professor Ralph Hancock and keep her job?

I'm going through "there are no neutral legal principles phase." Like some analysts of O'Connor and Bader Ginsburg, you push it as far as you think you can away with and then make the best argument you can for your position.

You know, they said the issue of whether a government employee's speech is protected is a question of law, but this opinion looks exactly like it's a question of fact. Otherwise, under her equal protection argument, either both she and that lesbian provost should have been fired, or neither should have been fired. And the analysis before that was about the scope of this vice president's duties in carrying out university policy and the amount of discretion she had in implementing policy. That seems like a question of fact to me.

I would bet under this case and Rose, the janitor would be fine and the head of a state EEOC would be gone. And it seems that the relevance of the speech to the policy you are carrying out is another determinative factor---which again seems to me like a question of fact, not a question of law. Say instead of being opposed to equal pay for equal work, the EEOC head wrote a letter to the editor about the immorality of abortion. That's not really relevant to what the EEOC does, so unless there was some weird circumstance where the EEOC official refused to investigate some woman's hostile workplace claim because she had had an abortion, I think that would be protected speech.

By the way, I am trying to think of a title for this thread that is more wrong than the title it has. No luck so far.

[_Darth J]

Not that tricky at all. Her claims failed because her lawyers failed. She likely would have won on the eqaul protection claim had her lawyers used some due diligence. For her equal protection claim her lawyers failed to provide a shred of evidence to a key element of a equal protection claim.

meh. That's a pretty bold statement unless you have read the whole record on appeal and the plaintiff's appeal briefs. Decisions say all sorts of things that aren't necessarily true.

But as the decision notes, before she has much of a 14th amendment claim, she has to show that she has a 1st amendment claim which under Pickering and Rose the court decided she didn't.

As to disperate treatment under equal protection, you assume that there had been disperate treatment and plaintiff's attorneys just failed to find it. Maybe it wasn't there to find.

Finally, this seems to be more of a Free Speech case than a Free Exercise case.

What lulu said. And this is a free speech case, not a free exercise case.

[_lulu]

And the analysis before that was about the scope of this vice president's duties in carrying out university policy and the amount of discretion she had in implementing policy. That seems like a question of fact to me.

I think you put your finger on it. The court found as a matter of law that she held a policy making position. That's why I don't think I like Rose, like the world cares.

That's what plaintiff could have hammered, and maybe she did, interim associate, its not like she's a prime mover at the university.

Maybe I'll get around to looking at Pickering.

[Guest]

meh. That's a pretty bold statement unless you have read the whole record on appeal and the plaintiff's appeal briefs. Decisions say all sorts of things that aren't necessarily true.

But as the decision notes, before she has much of a 14th amendment claim, she has to show that she has a 1st amendment claim which under Pickering and Rose the court decided she didn't.

As to disparate treatment under equal protection, you assume that there had been disperate treatment and plaintiff's attorneys just failed to find it. Maybe it wasn't there to find.

Finally, this seems to be more of a Free Speech case than a Free Exercise case.

What lulu said. And this is a free speech case, not a free exercise case.

I do not think she had to prove the free speech claim to win on the equal protection claim. She lost on the equal protection claim for not showing that she and the other person were "similarly situated".

For example, Dixon did not engage in protected speech. Lets say that Vice-Provost also did not engage in protected speech. And the two are similarly situated. Dixon was fired VP was not, that is disparate treatment.

[_Darth J]

I do not think she had to prove the free speech claim to win on the equal protection claim.

If she cannot show an established right being at stake, then there is no equal protection claim. The 14th Amendment guarantees equal protection of law, not simply equal protection of "treatment."

[Guest]

meh. That's a pretty bold statement unless you have read the whole record on appeal and the plaintiff's appeal briefs. Decisions say all sorts of things that aren't necessarily true.

But as the decision notes, before she has much of a 14th amendment claim, she has to show that she has a 1st amendment claim which under Pickering and Rose the court decided she didn't.

As to disperate treatment under equal protection, you assume that there had been disperate treatment and plaintiff's attorneys just failed to find it. Maybe it wasn't there to find.

Finally, this seems to be more of a Free Speech case than a Free Exercise case.

What lulu said. And this is a free speech case, not a free exercise case.

I do not think she had to prove the free speech claim to win on the equal protection claim. She lost on the equal protection claim for not showing that she and the other person were "similarly situated". Equal Protection claims, at least from a EEOC standpoint, involve burden shifting.

As to this being a Free Speech issue rather than a religious issue....better make sure Bcspace knows that.

Those are good points. In the end I'm not sure how much difference it makes to the result if this was Free Speech or a Free Exercise case other than to feed bcspace's and Droopy's deep-seated needs for persecution.

I wouldn't be surprised if she did put a statutory EEOC claim in her complaint. It would seem odd if she didn't. Then she would just have to show disparate treatment rather than starting with a fundamental right. The decision does have a separate paragraph about equal protection separate from applying the 1st amendment to the states under the 14th Amendment. Just in the context of the decision, that paragraph seemed unnecessary.

[_3sheets2thewind]

... other than to feed bcspace's and Droopy's deep-seated needs for persecution.

too true, too bad bcspace relies are false "news" to feed his persecution complex.