Appeal from the United States District Court for the District of Arizona Earl H. Carroll, District Judge, Presiding D.C. No. 2:04-cv-02510-EHC.
The opinion of the court was delivered by: Kozinski, Chief Judge
Argued and Submitted October 19, 2009 -- Tempe, Arizona
Before: Sandra Day O'Connor, Associate Justice,*fn1 Alex Kozinski, Chief Judge, and Sandra S. Ikuta, Circuit Judge.
We consider the interplay between the First Amendment and the right to be free of workplace harassment on the basis of protected status.
Professor Walter Kehowski sent three racially-charged emails over a distribution list maintained by the Maricopa County Community College District, where he teaches math. Every district employee with an email address received a copy. Plaintiffs, a certified class of the district's Hispanic employees, sued the district, its governing board and two district administrators (the chancellor and the president) claiming that their failure to properly respond to Kehowski's emails created a hostile work environment in violation of Title VII and the Equal Protection Clause.
Kehowski's first email had "Dia de la raza" as its subject line and asked, "Why is the district endorsing an explicitly racist event?" (Citations and emphasis omitted.) Día de la Raza translates as "Day of the Race" and is celebrated by some Hispanics instead of Columbus Day.*fn2
Kehowski's next email, sent almost a week later, began, "YES! Today's Columbus Day! It's time to acknowledge and celebrate the superiority of Western Civilization." Kehowski then offered excerpts from a variety of articles. One article quoted Arthur Schlesinger, Jr. as saying that "democracy, human rights and cultural freedom" are "European ideas." Another promoted a theory that "Native Americans actually committed genocide against the original white-skinned inhabitants of North America." (Emphasis omitted.) Yet another argued that "America did not become the mightiest nation on earth without distinct values and discrimination" and asserted that "[o]ur survival depends on discrimination."
Two days later, Kehowski sent a third email that began, "Ad hominem attacks are the easiest to launch and the most difficult to defend against." Kehowski quoted an email calling his messages "racist" and said: "Boogie-boogie-boo to you too! Racist? Hardly. Realistic is more like it." He quoted an email claiming that "[m]ost thinking people believe that the European, Christian victory over the Moorish, Islamic (and African) culture in Spain is an example of a victory of a 'backward' culture over one that was more civilized." He responded: "[H]istory has answered quite convincingly which cultures were backward." And he warned: "[I]f we don't pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics (here, here, and here) will dominate (here, here, and here) [and not without a little help from the treasonous scum Bill Clinton]." (Bracketed words in original.)
This third email linked to a website maintained by Kehowski on the district's web server. The school's technology policy encouraged faculty to develop district-hosted web-sites for use "as a learning tool," although faculty also maintained sites of a personal nature. Kehowski's site declared that "[t]he only immigration reform imperative is preservation of White majority" and urged visitors to "[r]eport illegal aliens to the INS." (Emphasis omitted.) Like his emails, Kehowski's website quoted and linked to articles. One critiqued a "shallow and self-contradictory" ideology in which "[r]ace must be held meaningless only by whites." Another expressed concern that "[t]he persistent inflow of Hispanic immigrants threatens to divide the United States into two peoples."
Prominent figures in the community condemned Kehowski's ideas. The president of the college circulated an email:
[T]he openness of our [email] system... allows individuals to express opinions on almost any subject.... However, when an e-mail hurts people, hurts the college, and is counter to our beliefs about inclusiveness and respect, I cannot be silent. In that context, I want everyone in the [college] community to know that personally ...