A professor at an Arizona community college issued three e-mails to a distribution list maintained by the college. Many recipients considered his messages racist, offensive, and/or misguided. They pointed to his claims that "Western Civilization" is superior and his derogatory comments about Hispanics. Were his comments illegal?
What happened. “Kowalski,” a professor at Maricopa County Community College, initially objected to the school’s celebration of Dia de la raza (Day of the Race) as a Latino parallel or substitute for Columbus Day. He called the event racist. Spurred by objections to his message, he sent another a week later and a third 2 days after that, all of them defending the primacy of European history and culture. The third message contained a link to the professor’s own website on the district’s web server. On his site, he talked of the need to preserve the ‘White majority.’
Many prominent figures in the college community, including the college president, condemned Kowalski’s comments, with the president calling them “hurtful” and “disrespectful.” But the chancellor noted in a press release that disciplining Kowalski “could seriously undermine our ability to promote true academic freedom.” In the absence of discipline, a group of Latino employees sued the college administration, charging that Kowalski had created a hostile work environment and the college had done nothing to stop it.
In federal district court, a judge ruled for the plaintiffs and said the college defendants did not deserve immunity from the charge. They appealed to the 9th Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
What the court said. Appellate judges did not agree that “speech” in the form of offensive e-mails constituted harassment, especially because it was not targeted to any individuals but to the general public. Like administrators, judges cited the need for academic freedom, and for constitutionally protected freedom of speech, regardless of the ethics or taste of Kowalski’s messages.
Judges wrote that his messages “were the effective equivalent of standing on a soapbox in a campus quadrangle and speaking to all within earshot.” So whether or not the defendants had qualified immunity, nothing illegal had been done, and the plaintiffs’ suit was dismissed. Rodriguez v. Maricopa County Community College, U.S. Court of Appeals for the 9th Circuit, No. 08-16073 (5/20/10).
Point to remember: If Kowalski had spoken or written directly to any Latino faculty member, administrator, or student with the insults in his messages, harassment might have occurred.