Rodriguez v. Maricopa County Community College District

605 F.3d 703, 2009 U.S. App. LEXIS 29101, 93 Empl. Prac. Dec. (CCH) 43,884, 109 Fair Empl. Prac. Cas. (BNA) 485
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 20, 2010
DocketNo. 08-16073
StatusPublished
Cited by6 cases

This text of 605 F.3d 703 (Rodriguez v. Maricopa County Community College District) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodriguez v. Maricopa County Community College District, 605 F.3d 703, 2009 U.S. App. LEXIS 29101, 93 Empl. Prac. Dec. (CCH) 43,884, 109 Fair Empl. Prac. Cas. (BNA) 485 (9th Cir. 2010).

Opinion

KOZINSKI, Chief Judge:

We consider the interplay between the First Amendment and the right to be free of workplace harassment on the basis of protected status.

Facts

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.) Dia de la Raza translates as “Day of the Race” and is celebrated by some Hispanics instead of Columbus Day.1

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 [706]*706North 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 websites 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 and administratively, I support the District’s values and philosophy about diversity.

The chancellor of the district issued a press release stating that Kehowski’s “message is not aligned with the vision of our district” but explaining that disciplinary action against Kehowski “could seriously undermine our ability to promote true academic freedom.” Although Kehowski’s emails were not sent to any students, many obviously found out about them, and the student body president circulated an email to the faculty declaring that Kehowski “did not do anything illegal, but none of us believe [his] actions were ethical or in good taste.” Contemporary press accounts describe vocal student protests against Kehowski.

A number of district employees also complained to the administration that Kehowski’s statements had created a hostile work environment. No disciplinary action was taken against Kehowski, and no steps were taken to enforce the district’s existing anti-harassment policy.

Plaintiffs now seek damages and other relief on the ground that defendants “failed to take immediate or appropriate steps to prevent Mr. Kehowski from sending Plaintiffs harassing emails” and from disseminating harassing speech via his district-hosted website. The district court [707]*707granted summary judgment to the president and chancellor on plaintiffs’ Title VII claim on the ground that Title VII liability-does not extend to agents of the employer. But it denied summary judgment to the president and chancellor on plaintiffs’ constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional and Title VII claims. The president and chancellor brought this interlocutory appeal, challenging the district court’s ruling that they are not entitled to qualified immunity as to the alleged Equal Protection violation.

Jurisdiction

On an interlocutory appeal from a denial of qualified immunity, jurisdiction is limited to the purely legal question of immunity. See Cunningham v. Gates, 229 F.3d 1271, 1286 (9th Cir.2000). “[Wjhere the district court denies immunity on the basis that material facts are in dispute, we generally lack jurisdiction.” Id.

The district court characterized the central question of our qualified immunity analysis — whether defendants violated a clearly established right of which a reasonable person would have known — as a factual inquiry, and denied immunity on the grounds that “[a] genuine issue of material fact exists as to whether the acts or omissions of Defendants ... were objectively reasonable.” Plaintiffs claim that we lack jurisdiction to review this determination, and that the question of qualified immunity must therefore go to a jury. But the contours of the right at issue, and the reasonableness of defendants’ actions, is not a question of fact — it’s a question of law. See, e.g., Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.1997). In answering that question, we may not disregard material factual disputes identified by the district court. Gates, 229 F.3d at 1286. But we undoubtedly have jurisdiction to determine whether, taking the facts in the light most favorable to plaintiffs, defendants would have violated a constitutional right of which a reasonable government official would have been aware.

Qualified Immunity

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Bluebook (online)
605 F.3d 703, 2009 U.S. App. LEXIS 29101, 93 Empl. Prac. Dec. (CCH) 43,884, 109 Fair Empl. Prac. Cas. (BNA) 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-maricopa-county-community-college-district-ca9-2010.