Executive Summary: The University of Toledo terminated an Associate Vice President for Human Resources after she wrote an op-ed column arguing that homosexuals could choose their sexual orientation and thus were not entitled to the same protections as persons of color. This view ran contrary to the University's diversity and equal opportunity policies. The Sixth Circuit upheld the employee's termination. The court held that the employee's speech was not protected by the First Amendment because she held a policymaking position and was speaking to a policy issue.
Background
In April 2008, the Toledo Free Press published an editorial, "Gay rights and wrongs," that implicitly compared the civil-rights movement with the gay-rights movement. The editorial criticized the University of Toledo by name for its alleged denial of health benefits to certain employees in same-sex relationships.
Crystal Dixon was, at the time, the University's interim Associate Vice President for Human Resources. Two weeks after the Free Press editorial, Dixon wrote an op-ed entitled, "Gay rights and wrongs: another perspective." Dixon took issue with the editorial's comparison of the civil-rights movement to the gay-rights movement. She wrote:
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 evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few…
Nowhere in her op-ed did Dixon identify herself as a University official, but the University quickly responded. The University's President submitted an op-ed of his own to the Free Press three weeks later informing the public that Dixon was a University human resources officer and clarifying that Dixon's comments "did not accord with the values" of the University.
The University placed Dixon on administrative leave. At an internal hearing on her employment status, Dixon argued that her op-ed expressed her personal views as a private citizen. The University terminated her employment in December 2008 noting that her op-ed ran contrary to the University's policies and thus raised serious doubts about her ability to lead critical human resources functions.
Dixon sued the University, a governmental institution, under Section 1983 of the Civil Rights Act claiming that the University violated her constitutional right to free speech. A district court granted summary judgment in favor of the University, and the Court of Appeals for the Sixth Circuit affirmed.
First Amendment Retaliation
Dixon claimed that the University fired her in retaliation for her protected speech. A public employee's speech enjoys First Amendment protection when it touches on a matter of public concern and when the speaker's free speech interests outweigh the governmental entity's interests as an employer. Assuming Dixon could survive these two prongs, she also bore the burden to show that her speech was not made pursuant to her official duties as the University's Associate Vice President of Human Resources.
The parties did not dispute that Dixon's op-ed spoke to a matter of public concern. The case instead turned on whether Dixon's free speech interests outweighed the University's interests as an employer. The University argued that this balance tilted presumptively in its favor because Dixon was a policymaking employee who was discharged because of speech related to her policy views.
The court agreed with the University concluding that Dixon fell into a category of policymaking positions that have been delegated significant discretionary authority to carry out the institution's policy goals. Dixon had authority to hire and fire. Her job description required her to recommend, implement and oversee University policy. It also gave her authority to represent the University before the EEOC and the Ohio Civil Rights Commission.
The court also agreed that Dixon was discharged because her speech was related to her policy views. The University's strategic plan relied on a commitment to diversity "in all its dimensions." The University's anti-harassment policy protected sexual orientation and gender identity. The University had also recently enacted a "safe places program" that encouraged faculty and staff to open their workspaces to be safe places for LGBT individuals.
The court rejected Dixon's argument that she never said the University's policies were wrong or should not be enforced. Her op-ed laid bare her view that homosexuals are not entitled to the same protections as those who participated in the civil-rights movement. This went against the University's policies and thus removed her speech from First Amendement protection. Dixon v. University of Toledo, No. 12-3218 (6th Cir. Dec. 17, 2012).
This Alert was prepared by FordHarrison partner Brian Kurtz, a member of the firm's Higher Education Practice Group. If you have questions about the Dixon case or any other higher education issues, please feel free to contact Brian directly at 312-960-6137, bkurtz@fordharrison.com, or contact the FordHarrison attorney with whom you usually work.
