Tuesday, December 09, 2008

Tolerance in Toledo


Crystal Dixon was an Associate Vice President of Human Resources at the University of Toledo. She had worked for the University for about six years. In April she wrote a newspaper article opposing gay rights on the basis of her Christian beliefs. (I take no position on the merits of the article.)

Toledo is as leftist and politically correct as any school. And liberals turn tolerance into a one-way street. So opposing gay rights--especially when based on the Bible--is a capital offense. Unsurprisingly, "A letter from [University of Toledo President Lloyd Jacobs] to Ms. Dixon said her public position was in direct contradiction with university values"; Jacobs also told reporters that Dixon's views contradict school policy, which he described as "mission critical." If the University didn't previously have a policy, it clearly does now.

In May, the University fired Dixon because of that article. On December 1st, Ms Dixon filed a complaint in the Ohio Federal District Court, alleging First Amendment and civil rights violations.

Can the school do that? Could it survive court challenge? As shown below, yes and yes.

The law:
  • State schools are government schools, meaning states must provide due process in hiring/firing and cannot violate bill of rights protections. Waters v. Churchill, 511 U.S. 661 (1994).

  • But states, acting as employers, have rights too. For years, state authority was paramount: over a century ago, Justice Holmes famously said, "[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892). But the jurisprudence evolved to outlaw conditioning public employment on the surrender of protected free expression. Keyishian v. Board of Regents, 385 U.S. 589, 605-06 (1967).

  • That test isn't very useful; the question remains: what speech is protected? In practice, courts "arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

  • However, as I have said, that doesn't turn the Supreme Court into a supreme school board. See Connick v. Myres, 461 U.S. 138, 149 (1983):
    To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark - and certainly every criticism directed at a public official - would plant the seed of a constitutional case. While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.
    So, absent some specific law or regulation, ordinary dismissals from government service are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable. Board of Regents v. Roth, 408 U.S. 564 (1972).
The analysis:

Ms Dixon's article about gay rights plainly addressed a matter of public concern. So the remaining question under the Pickering test is whether the University properly concluded that public airing of her viewpoint impaired her ability to do her job.
  • First, the school argues Dixon's article:
    calls into question your continued ability to lead a critical function within the administration as personnel actions or decisions taken in your capacity as associate vice president for human resources could be challenged or placed at risk. The result is a loss of confidence in you as an administrator.
    Ms. Dixon responds:
    For more than 25 years, I have been a Human Resources professional and leader, providing excellent service to all people regardless of their sexual orientation. I have hired and recommended the hiring of both homosexuals and heterosexuals based upon their qualifications, skills and abilities. My performance evaluations with the University of Toledo are excellent.
    Importantly, the University has not pointed to any particular anti-homosexual personnel action in the past. Indeed, as Dixon argues, "To say that I cannot have a personal opinion regarding the practice of some humans and not be effective in my job as a human resources leader is preposterous given my track record for the past 25 years."

    I've always believed one could hold a political opinion, yet not act on that view professionally. Regardless of the opinions expressed in her article, there's no evidence Dixon's conduct included disparate treatment of homosexuals. Thus, the University's firing cannot be supported by past acts.

  • What about a concern for Ms Dixon's performance in the future? This seems to be the University of Toledo's position:
    Matt Lockwood, a UT spokesman, said yesterday the university welcomes dissent and input from others and the exchange of ideas, but her public expressions called into question her ability to do the functions of her job.

    "Certain jobs within a public institution have restrictions on what those people in those jobs can express," he said.
    Obviously, Ms Dixon's conduct to come is unknowable. Predicting the future is outside the expertise of courts.

    Even if judges were seers, I'm unpersuaded, in particular by blogger Pam's analogy to religion or race:
    how would you feel if her comments had been against Christians, or Muslims, or any other groups; people whose interests she was hired to look after while they are students at the university.
    This assumes the conclusion: Governmental racial and religious discrimination is clearly prohibited by the Constitution. Opposing gay marriage isn't, at least not yet. Thus, Dixon's piece didn't advocate unlawful acts, so the "Bong Hits for Jesus" case, Morse v. Fredrick, No. 06-278 (Mar. 19, 2007), doesn't apply. And as a VP of Human Resources, it's not clear Ms Dixon had significant contact with students. So, I doubt the case will turn on guesses about Dixon's predicted conduct in an alternative universe where she kept her job.

  • Can Ms Dixon be fired because her political precepts differ from those of the University? I say, why not? This is not to say I agree with University's position on gay rights, but one can't overlook the fact that they have such a position. And judicial inquiry into the legality of University policy would entangle courts into what are properly Executive or legislative decisions. Just look at the 1970s-era busing decisions, some of which still give Federal Courts power over school policy. No law necessitates repeating that mistake, especially when race isn't involved.

    No one is forced into a government job. The University has the right to ensure its employees sing from the same song sheet. If one doesn't like the music, seek employment elsewhere.

    This seems unfair to many. GayPatriot observes, "so the university president gets to express his views in an article, but someone who says something inconsistent with what he calls the university’s stated values loses her job?" And Don Surber asks, "I realize she is not a professor, but shouldn’t a university be open to ideas that are unpopular?" Well, yes and no: Governmental regulation of speech based on the message it coveys is viewpoint discrimination, normally prohibited. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972). But when government itself takes a position, it has a right to insist employees are consistent. Cf. Board of Regents of the University of Wisconsin v. Southworth, 529 U.S. 217 (2000).

    Ms Dixon had to know that her bosses had a contrary position. One can lament the school's narrow-minded view, but that doesn't make the firing unlawful.

  • The University argues that Dixon's article could mislead readers to conclude that Dixon was speaking officially and publishing the policy of her school. Ms Dixon counters by observing that the offending article wasn't written by or with the approval of the school and never mentioned her job.

    The University has the better claim. The article addressed UT personnel matters about which Dixon was in a unique position to know:
    When the University of Toledo and former Medical University of Ohio merged, both entities had multiple contracts for different benefit plans at substantially different employee cost sharing levels. To suggest that homosexual employees on one campus are being denied benefits avoids the fact that ALL employees across the two campuses regardless of their sexual orientation, have different benefit plans.
    This seems to be repeating official University policy, making it plausible that the article's politics also were school-sanctioned. And Dixon's piece mentioned that the author was a UT alum.

    Thus, the facts support the University's claim that Dixon could be mistaken as speaking on behalf of the school. Such speech lawfully can be regulated by states. Rust v. Sullivan, 500 U. S. 173 (1991). Regulation includes firing.

  • Are there limitations to the University's authority? Well, the Hatch Act would prevent state schools from soliciting contributions to particular candidates. And an enforceable policy must have some plausible relationship to the school's mission or functions and might not apply equally to all employees. But with respect to gay rights and HR staff, a school policy could be sweeping, even though as Eugene Volokh says: "it suggests that pretty much any public speech that suggests that homosexuality is immoral could lead to a public employee's being fired, at least if the employee does something related to human resources (which would presumably include employees who are simply middle managers, and not just vice presidents of human resources)." Volokh is right--but that doesn't make the University's policy wrong. The freedom at stake is only the liberty to work for an employer with whom you disagree, a right not guaranteed by the Constitution.

    Of course, my approach would apply equally to students, especially at private schools. No one has the right to attend a particular school or to force "recognition" of groups lobbying on behalf of causes a religious school rejects. But the courts have concluded otherwise. Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1 (D.C. 1987) (forcing a Catholic college to grant gay groups access to school facilities). Which is an additional reason to keep such disputes out of courtrooms.

I'm a zealous defender of free speech. And an long-time critic of mobs and courts discriminating against those exercising freedom of conscience by arguing against gay marriage or other hypothetical rights. So in general, I agree with Volokh:
It does seem pretty clear that at least some of the progress of gay rights -- not all, but some -- is coming at he expense of the freedom (whether or not constitutionally protected freedom) of people who hold anti-gay religious views.
But unlike other unwarranted limitations on popular sovereignty, neither the vote nor the legislature are involved here. Ms Dixon's circumstances are different: the Constitution doesn't give state employees the right to take a public position in conflict with that of the state, especially where the speech could be interpreted as expressing state policy.

Further, the judiciary is a forum for resolving legal cases and controversies. I abhor using courts to settle school personnel disputes; addressing a limitation on materials distributed to a fifth-grade public school class, I said: "Of the two principles at stake, protecting the principal is the more important." That doesn't mean that courts must always abstain. But this isn't such a case: for the most part, courts are not the place for resolving whether school policies are proper. And it's hard to imagine, were the school's policy upheld, how Ms Dixon could prevail. Even without a school policy, a court might impose leftist views, as the D.C. Court of Appeals did to Georgetown.

I recognize that this outcome further shrinks diversity at universities, as Federalist Pauper's Apollo observes:
The effect of various aspects of the modern left - labeling anyone opposed to gay rights a bigot, anyone opposed to racial preferences a racist - is to make large numbers of jobs available only to leftists and the most closeted of conservatives. Already the diversity officers that every corporation and university employs must be card carrying leftists, but evidently the rule is reaching out to swallow up all of HR. Once the entryway into employment is controlled by an ideological cadre of holier-than-thous, what are the chances that those of us who have conservative paper trails will get our feet in the door?
Still, the law simply doesn't demand that state schools take a consistent approach to diversity. That's unfortunate. Which is why I gave up on academia years ago: Diversity is a myth, construed against conservatives no matter how the issue is framed. As shown by the Georgetown case, cited above, diversity encompasses those advocating gay rights but not their opponents.

Publicly funded universities should be cautious about taking political positions and requiring fealty by faculty and staff. Yet the fact that a state school does so isn't grounds for judicial intervention. Put differently, "intolerant" isn't necessarily "unconstitutional." And seeking judicially-imposed tolerance is a fool's errand.

For these reasons, I predict the courts will side with the University of Toledo and Crystal Dixon's law suit will fail.

Oh by the way--Crystal Dixon is black.

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