Sometimes It Is Best to Bite Your Tongue! Sixth Circuit Holds University's Diversity Interests Outweighed First Amendment Right to Freedom of Speech
In Dixon v. Univ. of Toledo et al., the Sixth Circuit Court of Appeals has held that a high-level human resources official who writes publicly against the policies her government employer charges her with creating, promoting and enforcing, is not engaging in protected speech. Crystal Dixon, an African-American woman, who was the acting Interim Associate Vice President for Human Resources at the University of Toledo ("the University") when she penned a riveting op-ed column rebuking comparisons between the civil-rights and gay-rights movements. The piece ultimately led to her termination.
On April 4, 2008, Toledo Free Press Editor-in-Chief Michael Miller wrote an editorial titled "Gay rights and wrongs." In his piece, Miller compared the gay rights movement to the civil rights movement and expressed concern that Medical College of Ohio employees who became University of Toledo employees following a 2006 merger were not offered domestic-partner benefits that were available to other University employees. Dixon responded to Miller's piece with her own op-ed column, "Gay rights and wrongs: another perspective," on April 18, 2008. Dixon rejected Miller's comparisons of the gay-rights and civil-rights movements stating,
"[a]s a Black woman who happens to be an alumnus of the University of Toledo's Graduate School, and employee and business owner, I take great umbrage at the notion that those choosing homosexual lifestyle are 'civil rights victims.' Here's why. I cannot wake up tomorrow and not be a Black woman. 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 as evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few...."
Dixon also responded to Miller's comments regarding health insurance, stating, "[t]he reference to the alleged benefits disparity at the University of Toledo was rather misleading....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."
Dixon was placed on paid administrative leave on April 21, 2008, as a result of her op-ed column. President Jacobs wrote a guest column in response to Dixon's op-ed column, on May 4, 2008. Jacobs repudiated Dixon's opinion on behalf of the University and emphasized the University's position on diversity. Jacobs also highlighted the various programs at the University aimed at expanding and supporting diversity.
Dixon's disciplinary hearing was held on May 5, 2008. Dixon read a prepared statement reiterating the beliefs stated in her op-ed column, and she stated she was speaking as a private citizen. She also claimed she had never discriminated based on sexual orientation, and accused the University of treating her differently than other employees. President Jacobs issued a termination letter to Dixon on May 8, 2008.
On December 1, 2008, Dixon filed suit in the U.S. District Court against the University, President Jacobs, and Vice President for Human Resources and Campus Safety William Logie, alleging First Amendment and other violations. The District Court granted the Defendant's motion for summary judgment. Dixon filed an appeal to the Sixth Circuit Court of Appeals.
The Court analyzed Dixon's claim of First Amendment Retaliation specifically focusing on whether her speech was protected. Dixon needed to show the following: 1) her speech touched on a matter of public concern; 2) that under the balancing test announced by the U.S. Supreme Court in Pickering v. Board of Education, her "free speech interests outweigh the efficiency interests of the government as employer"; and 3) that the speech was not made pursuant to her official duties." The parties agreed Dixon was speaking on a matter of public concern, but the University argued Dixon could not satisfy the Pickering requirement, and was speaking in her official capacity.
The University argued Dixon's speech fell within the presumption set forth by the Sixth Circuit Court of Appeals in Rose v. Stephens, which states "where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law." The evidence established Dixon was delegated appointing authority and was responsible for recommending, implementing, and overseeing policy. Moreover, Dixon's comments implying that homosexuals should not be afforded the same protections as African-Americans is in direct contradiction to several University policies developed and promoted by the Human Resources Department. The Sixth Circuit found the University's interests outweighed Dixon's interest as a matter of law and affirmed the district court's grant of summary judgment.
Government employers should understand that the First Amendment will not prevent them from disciplining employees serving in policy-making positions for public speech that contradicts the employer's policies. Such employers, however, should be careful to consider the disruption caused by the employee's speech before taking disciplinary action.