The First Amendment and Non-Protected Speech by Policy Makers

"A University Policy Maker Has No Constitutional Right to Criticize University Policy in a Newspaper Op Ed Essay"

By Richard Fossey

Paul Burdin Endowed Professor of Education, Picard Center for Childhood Development and Lifelong Learning, University of Louisiana at Lafayette, LA

And

Nathan Roberts

Professor and Chair, Department of Educational Foundations and Leadership, Picard Center for Childhood Development and Lifelong Learning, University of Louisiana at Layfayette, LA

In Dixon v. University of Toledo, 702 F.3d 269 (6th Cir. 2012), the University of Toledo fired Crystal Dixon, its associate vice president for human resources, after she published an op ed essay in a local newspaper that was implicitly at variance with university policy regarding sexual orientation. Dixon sued, claiming a violation of her constitutional rights. The Sixth Circuit upheld her dismissal, ruling that she held a policymaking position at the university and that her op ed essay was not protected speech under the First Amendment. The Sixth Circuit’s decision sharply limits the constitutional right of public employees who hold policy making positions to publicly speak out on the policies of their employers, even if they are speaking as citizens and not in their capacities as public employees

Facts

In April 2008, Michael Miller, editor-in-chief of the Toledo Free Press, wrote an editorial criticizing the University of Toledo for purportedly denying healthcare benefits to some of its same-sex couples at the university. Miller implicitly compared the civil-rights movement in the United States with the gay-rights movement.

Crystal Dixon, who was employed at the University of Toledo as interim Associate Vice President for Human Resources, responded to Miller’s editorial in an op ed essay that appeared in the Toledo Free Press on April 18, 2008 Her essay appeared under her name, but she did not identify her as a university administrator In this essay, Dixon rejected Miller’s comparison of the gay-rights movement with the civil rights movements:

As a Black woman who happens to be an alumnus of the University of Toledo’s Graduate School, an employee and business owner, I take great umbrage at the notion that those choosing the 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 evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International  just to name a few  . . . .

Id. at 272

Three days after Dixon’s op ed essay was published, the university placed her on administrative leave. Then, on May 4, 2008, University of Toledo president Lloyd Jacobs published a guest essay in the Toledo Free Press, disassociating the university with Dixon’s position. “Although it is common knowledge that Crystal Dixon is associate vice president for Human Resources at the University of Toledo,” Jacobs wrote, “her comments do not accord with the values of the University of Toledo.” Id Jacobs then went on to explain the university’s various programs aimed at supporting and expanding diversity on the university’s campus.

On May 8, 2008, Dixon received a letter from President Jacobs informing her that she had been terminated from her administrative position at the University of Toledo Jacobs explained the termination as follows:

The public position you have taken in the Toledo Free Press is in direct contradiction to University policies and procedures as well as the Core Values of the Strategic Plan which is mission critical. Your position also 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.

Id. at 273

A few months after her termination, Dixon sued the University of Toledo, President Jacobs, and William Logie, the university’s vice president for human resources and campus safety. Dixon alleged that she had been retaliated against for exercising her First Amendment right to free speech. She also contended that the university’s actions constituted unconstitutional viewpoint discrimination and that its policies regarding employee speech were unconstitutionally vague Finally, Dixon argued that the university had violated the Equal Protection Clause of the Fourteenth Amendment because she had been fired for expressing her views about homosexuality while another university administrator had not been punished for expressing a different view.

A trial court dismissed all of Dixon’s claims, and she appealed to the Sixth Circuit Court of Appeals In a 2012 opinion, a three-judge panel of the Sixth Circuit affirmed the trial court’s dismissal.

Six Circuit’s Opinion

First and most importantly, the Sixth Circuit rejected Dixon’s First Amendment retaliation claim. To make such a claim, the court ruled, Dixon must first establish that she spoke on a matter of public concern in accordance with the Supreme Court’s ruling in Connick v Myers, 461 U.S. 138 (1983) and Sixth Circuit precedent Second, under the Pickering balancing test set forth in Pickering v. Board of Education, 391 U.S. 563 (1968), Dixon must show that her free speech interests outweighed the “the efficiency interests of the government as employer.” Id. at 274. Finally, under the rule laid down in Garcetti v. Ceballos, 547 U.S. 410 (2006), “Dixon must demonstrate that the speech was not made pursuant to her official duties as Associate Vice President of Human Resources . . .” Id.

The University of Toledo defendants did not dispute that Dixon had spoken on a matter of public concern in her op ed essay. Thus, the court turned to the question of whether Dixon’s speech outweighed the university’s interest under the Pickering balancing test.

In deciding this issue, the Sixth Circuit panel drew on the Sixth Circuit precedent of Rose v. Stephens, 291 F.3d 917 (6th Circuit 2002), regarding the free speech rights of public employees who hold policymaking positions. As the Sixth Circuit panel explained, “The Rose presumption  dictates that ‘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.’” Id., citing Rose at 291 F.3d at 921

For the Rose presumption to apply in Dixon’s case, the court explained, Dixon must be found to have held a confidential or policymaking position at the University of Toledo, and her disputed speech must have been “on a matter related to political or policy views.” Id. at 275  In the court’s view, “[a]n application of the [Rose] presumption ‘renders the fact-intensive inquiry normally required by Pickering unnecessary because under these circumstances it is appropriate to presume that the government’s interest in efficiency will predominate.’” Id., citing Rose, 291 F.3d at 923.

Applying Sixth Circuit precedent as to what constitutes a policymaking position for purposes of First Amendment claims by public employees, the Sixth Circuit concluded that Dixon had indeed held a policymaking position at the University of Toledo on the date that her op ed essay was published in the Toledo Free Press. “The evidence establishes that Dixon was delegated appointing authority and was responsible for recommending, implementing, and overseeing policy.” Id. at 276

Moreover, the court continued, Dixon had spoken “on a political or policy issue. Id. at 277  The Third Circuit rejected Dixon’s argument that she had been speaking on a matter of personal concern that did not relate to substantive university policy. On the contrary, “Dixon’s public statement implying that LGBT individuals should not be compared with and afforded the same protections as an African Americans directly contradicts several . . . substantive policies instituted by the university.” Id.

Concluding its First Amendment analysis, the Sixth Circuit ruled:  [T]he Rose presumption applies to Dixon because there is evidence establishing that she was a policymaker who engaged in speech on a policy issue related to her position. The government’s interest thus outweighs Dixon’s interests as a matter of law, and we affirm the district court’s grant of summary judgment to the defendants on this basis.” Id. The Rose presumption being dispositive, the court added, it was not necessary to apply the Pickering balancing test to determine whether her free speech interests outweighed the university’s interest in efficiency. Nor was it necessary to determine under Garcetti whether Dixon was speaking in an official capacity when she wrote her op ed essay.

The Third Circuit then went on to quickly dispose of two more of Dixon’s legal claims Specifically the court rejected Dixon’s vagueness and viewpoint discrimination claims on the basis that she had not presented any case law or evidentiary support for her arguments

Finally, the Third Circuit rejected Dixon’s argument that she had been denied equal protection in violation of the Fourteenth Amendment Essentially, Dixon argued that she had been treated differently than Vice Provost Carol Bresnahan, who had also publicly expressed a view on sexual orientation but who had not been terminated or punished. Vice Provost Bresnahan had registered with the city of Toledo’s same-sex couple registry and was later interviewed about her action in the Toledo Blade. In this interview, Bresnahan expressed her views about people who opposed to the city’s same-sex couple registry “It’s their religious beliefs, and bigotry in the name of religion is still bigotry,” Bresnahan was quoted to have said. Id. at 279.

Although the Sixth Circuit acknowledged that the comparison of Dixon with Bresnahan was “intuitively germane,” Dixon had not established an equal protection claim. Id. at 279 In the Sixth Circuit panel’s opinion, Dixon and Bresnahan were not similarly situated And in any event, Dixon had not established that the University of Toledo officials had violated Dixon’s fundamental rights, since her op ed essay was not protected speech.

Conclusion

Dixon v. University of Toledo is an important case because it articulates a judicial shortcut for applying the Pickering balancing test to free speech claims by public employees speaking out on matters of public concern. According to the Sixth Circuit, public employees who hold confidential or policymaking positions have no First Amendment right to publicly express their private opinions on political or policy matters that relate to their employment Applying what the Sixth Circuit panel called the Rose presumption, the public employer’s interests are presumed to outweigh the free speech interests of employees who hold policy-making positions. Thus, a university policymaking employee who writes an op ed essay in a local newspaper that implicitly criticizes her university’s official policies is not engaging in protected speech under the First Amendment.