6th Circuit: Diversity Trump's religious freedom

[_bcspace]

The 6th U.S. Circuit Court of Appeals has ruled that university diversity policies Trump the First Amendment’s protections of religion and religious expression, but the dispute will continue, as a legal team representing former University of Toledo worker Crystal Dixon has requested a rehearing.

At issue are Dixon’s personal religious statements regarding homosexuality and the school’s affirmative action program for homosexuals.

Dixon was dismissed from her university post after she wrote a personal letter to the editor of a local newspaper objecting to the characterization of homosexuality as being the same as race.

“I take great umbrage at the notion that those choosing the homosexual lifesetyle are ‘civil rights victims.’ Here’s why. I cannot wake up tomorrow and not be a black woman,” she wrote. “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 evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few.”

The university fired her from her position in the University of Toledo’s human resources division for writing the letter, citing her religious beliefs. She sued, and a lower court concluded that the school’s diversity efforts trumped Dixon’s First Amendment rights.

The appeals court now has agreed, according to the American Freedom Law Center, or AFLC, which represents Dixon.

AFLC asked for a rehearing because the appeals court panel assumed that the university had editorial control over any of Dixon’s statements because of her position with the school.

“Dixson was fired from her employment as associate vice president for human resources with the University of Toledo because she expressed her personal, Christian views as a private citizen in an opinion piece published in the Toledo Free Press. Plaintiff did not occupy a political position nor did she publicly criticize any identified policy of her employer in her writing. Rather, plaintiff was fired for expressing her personal religious beliefs in a local newspaper on a very controversial issue: gay rights,” the legal team said in its rehearing request.

“As the U.S. Supreme Court has long stated, ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’”

The legal team argued: “Here, plaintiff was fired because her personal religious beliefs did not comport with the university’s ‘diversity’ values. In fact, plaintiff’s speech was in response to a published editorial – it was not in response to anything her employer did or did not do. As defendants acknowledged in their brief, the only part of plaintiff’s speech that remotely touched upon university policies ‘was arguable supportive of the university.’”

The rehearing petition explained that the appeals court panel gave Dixon’s speech “no consideration” and instead ruled for the school “based on the presumption” the school controlled Dixon’s personal speech.

But the attorneys pointed out that precedent is “well settled that ‘a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’”

“There is no dispute that plaintiff was speaking on a matter of public concern and was thus terminated as a result of her speech,” the petition said. “And there is no reasonable dispute that when plaintiff was writing her opinion piece on her personal computer from her home on a Sunday, she was not speaking pursuant to her official duties with the university, but as a private citizen.

“This speech must be accorded the greatest weight … and not presumptively dismissed, as the panel did here, thus allowing a government employer to suppress speech based on a broad rendering of its ‘diversity’ values,” the petition said.

“Additionally, the university president, Defendant [Lloyd] Jacobs, was permitted to express his personal and controversial opinions on the very same subject in the Toledo Free Press without being punished for doing so.”

In fact, Jacobs announced a very public threat in his guest column over the issue, stating, “We will be taking certain internal actions in this instance to more fully align our utterances and actions with this value system.”

Crystal Dixon’s “comments do not accord with the values of the University of Toledo,” he wrote.

“It is necessary … for me to repudiate much of her writing.”

WND reported that as the appeals court decision approached, David Yerushalmi of AFLC said, “It should be concerning to all Americans that officials at a public institution such as the University of Toledo believe they can fire someone for violating the university’s ‘value system’ even though such actions clearly violate the Constitution.

“This case only reinforces the fact that the liberal idea of ‘diversity’ is code for the tyranny of political correctness.”

AFLC co-founder Robert Muise said at the time, “Anti-Christian bias and bigotry is a hallmark of the ‘diversity’ crusade that is promoted in our universities and other public institutions – and this case is an egregious example of this one-way diversity and its pernicious impact on our fundamental rights.”

It was April 3, 2008, when Dixon read an opinion piece published in the Toledo Free Press that compared homosexuality to the civil rights struggles of African-Americans.

“Dixon, an African-American and practicing Christian, disagreed with this comparison and subsequently submitted her own opinion piece to express her personal viewpoint,” AFLC reported.

“Dixon’s opinion piece, published on April 18, 2008, in the newspaper’s online edition, stated, in relevant part, ‘I respectfully submit a different perspective for [the author of the original op-ed] and Toledo Free Press readers to consider . … I take great umbrage at the notion that those choosing the homosexual lifestyle are civil rights victims.’”

She signed only her name and made no mention of her position at the university.

One month later, Dixon got a letter from Jacobs terminating her employment over “the public position you have taken in the Toledo Free Press.”

She sued over First and 14th Amendment violations.

6th Circuit: Diversity Trump's religious freedom-Says employee personal statements must align with university policy

I wonder if perhaps the fact that Dixon is black, in combination with the political incorrectness of her pov, heightens the need for liberals at the university and in the court to squash her post haste. I'll bet it does. Can't be having any women or blacks expressing conservative views....

I predict the Supreme Court, as currently composed, will overturn this decision as it should based on the information given.

[_krose]

I don't see how this is a first amendment issue. Here's what it says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

What part of this applies here?

Also, how is her statement a religious expression? Just because she says it is? You support her because she slammed a group you dislike, but it's really no different than voicing the opinion (based on religious belief, of course) that black people are inferior because they are the seed of Cain, or that the Jews deserved the Holocaust because of their role in the crucifixion.

Surely I have the right to sack an employee who embarrasses me in a public statement, even if they claim the statement was based on their religious beliefs.

[_EAllusion]

I don't see how this is a first amendment issue.

It's a public university that she was employed for. If the state conditions public employment on the private expression of one's beliefs, then the state is using its power to curtail speech and implicating the first amendment. The complicating factor here is that the state is also running a business and businesses do normally reserve the right, depending on anti-discrimination law, to term at-will employees for publicly embarrassing them.

I side with Dixon here, not only for first amendment reasons, but because her terming should've been prevented by the university's own anti-discrimination policies.

[_krose]

I don't see how this is a first amendment issue.

It's a public university that she was employed for. If the state conditions public employment on the private expression of one's beliefs, then the state is using its power to curtail speech and implicating the first amendment.

So my public job should be protected no matter what I say, as long as I can claim it's religious speech.

[_EAllusion]

So my public job should be protected no matter what I say, as long as I can claim it's religious speech.

Not quite. It depends on whether you are acting in your capacity as a citizen or an employee. And the first amendment covers all speech. So if you express your support for a political candidate that is opposing those in charge, your job should be protected. The court ruled here that there was a legitimate business interest in terming her. This article, coming from the usual deceptive sources BCSpace favors, fails to cite the key fact that she was in charge of the schools anti-discrimination policies while expressing views that might make render her ability to create and execute those policies compromised. My counter-argument would be that her op-ed isn't sufficient to demonstrate that and the first amendment is sacred enough that a more substantial burden has to be met to show her unqualified to execute university policy contrary to her personal views.

[_Kevin Graham]

The complicating factor here is that the state is also running a business and businesses do normally reserve the right, depending on anti-discrimination law, to term at-will employees for publicly embarrassing them.

Exactly. Which is why I support their actions. She should be fired and hopefully embarrassed as much as she embarrassed her employer. It is, after all, an institution of higher learning.

[_EAllusion]

The complicating factor here is that the state is also running a business and businesses do normally reserve the right, depending on anti-discrimination law, to term at-will employees for publicly embarrassing them.

Exactly. Which is why I support their actions. She should be fired and hopefully embarrassed as much as she embarrassed her employer. It is, after all, an institution of higher learning.

The slope you are proposing is far too slippery. A company can arbitrarily deem any employee an embarrassment for the expression of any of their views. What if it was a Utah professor being fired for expressing speech offensive to Mormons? That, after all, could be perceived as damaging to a key customer base they are trying to attract. Since this isn't any old business - it's the government - we need a higher standard of protection of speech. Otherwise the government is creating two classes of citizens - those deemed employable and deserving of consequent government benefits and those not on the basis of their speech. The first amendment is implicated too deeply here. We need a more substantial connection to the job duties. The university buttresses their argument with the fact that she was VP of HR, and therefore in charge of anti-discrimination, but unless they can demonstrate she wasn't adequately performing that business interest, I still consider this viewpoint discrimination. She sounds like someone who might not properly commit to HR policies that protect sexual orientation differences, but that should be demonstrable if it happens. Until then, she's just someone who expressed her views on gays. To rub salt in the wound, the university's own anti-discrimination policy covers expression of religious views.

Unfortunately, this is a classic case of leftwing hostility to speech deemed offensive that exists in academia. It's sort of the mirror of fundamentalist attempts at censoring what they find offensive. Hopefully it goes further up the decision is reversed.

[_Kevin Graham]

I don't think its that slippery. I'm not fond of this all or nothing approach, like you have to be able to say anything, anywhere, anytime, or else you can be silenced on anything, anywhere and anytime. I mean after all, don't we qualify this freedom in certain circumstances? Isn't hate speech excluded?

[_EAllusion]

I don't think its that slippery. I'm not fond of this all or nothing approach, like you have to be able to say anything, anywhere, anytime, or else you can be silenced on anything, anywhere and anytime. I mean after all, don't we qualify this freedom in certain circumstances? Isn't hate speech excluded?

Hate speech isn't excluded. "Hate speech" isn't even a legal category. This isn't Canada. You cannot and should not be excluded from holding a government job simply because you express views privately that orthodox opinion regards as hateful. People should not be punished for their beliefs or expressing them by the government, both as a matter of liberty and because unorthodox views sometimes are the right ones.

It's weird how quickly you flipped from a rightwing authoritarian to a leftwing one. Regarding my point, the slope is slippery because speech that's "an embarrasment" is too subjective a criteria and it could theoretically be applied to anything someone says that another group finds distasteful. That gives people a heckler's veto over anything a government employee might think. The above mentioned SC quote, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." still holds. The argument in the Dixon case is more narrow (the view you endorse is more obviously unconstitutional) in that there is more effort to tie her speech to a legitimate job function.

Finally, it's not that you are free to say anything in any circumstance as a government employee and be free from reprisal. It's that the reprisal can only come if it is substantially related to what is you are hired by the government to do. So you can't shout "balls!" on the job all day and be a public school teacher. All this woman did is express some views on homosexuality that suggest she's a bigot. She didn't do so in her capacity as an employee. There's not a strong enough connection between that, in my opinion, and any job she actually has. People are constitutionally free to be bigots. The university's own policies make it clear that employment cannot be discriminated on the basis of religious views. There's no caveat that says, "Well, religious views we don't strongly disagree with..."

[_EAllusion]

Here's a video of a public school teacher telling a student that he could be arrested for speaking negatively about Barack Obama after she criticized Mitt Romney for being a bully:

http://youtu.be/vjpWaESn_9g

"Telling" is a poor word choice on my part, as it's more along the lines of yelling and berating. She could and should be fired for this kind of behavior. The difference is that it's substantially related to her job. First, because she shouldn't be berating a student like this and second because she is a social studies teacher who apparently doesn't have an elementary grasp of American law.

It's not that anyone can say anything anywhere, but rather that government employees are free to have and share any opinion they want in their capacity as US citizens.