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Thursday, March 06, 2008

More on IUPUI and the KKK

I was going to post this as a Comment on Rick's post on the looniness at IUPUI, but there is a lot of stuff to bring out, so I decided to make it a separate post. First, Paul Secunda discusses this at Co-Op, with some very good comments. He also announces that IUPUI rescinded the punishment, although with a letter that sounds a lot more like a warning than an apology (more on that in a second).

Rick asks whether it is possible that reading a well-reviewed work of scholarly history can "constitute[] racial harassment, or should be the ground for disciplinary action." Unfortunately, those are two very different things. No, it would not and could not be racial harassment under Title VII just to read a book at work that has KKK in the title, nor can it be harassment to stop reading such a book because a co-worker objects; any Title VII claim against IUPUI would fail. The problem is that the incentive structure of harassment law makes this very sort of disciplinary action against Sampson likely. IUPUI is so scared of getting sued by the allegedly harassed co-workers (even on a claim that is utterly meritless to the point of frivolous) that it is easier for it simply to punish Sampson. For reasons perfectly explained in one of the Comments to Paul's Co-Op post, Sampson has no remedy for what should be recognized as a violation of his First Amendment rights--not to mention everything a university should stand for. So IUPUI can save itself the lawsuit and punish Sampson with impunity.

As Paul notes, the punishment was rescinded, but in a letter that likely will (and likely was intended to) make Sampson think long and hard before doing any on-break reading ever again. First, the affirmative action officer who wrote the letter insists she only got involved because of the perception of Sampson's co-workers about his conduct (i.e., reading a scholarly historical account of real-world events) and the sense that he was reading that book to create a hostile environment. She then explains that punishment was rescinded only because she "was unable to draw any final conclusion about what was intended by the conduct." Of course, if Sampson continues to read this book and co-workers continue to complain, it is very likely that the affirmative action officer will draw conclusions about what he was intended, simply because Sampson continued to ignore his colleagues' objections to his reading that book (in ordinary First Amendment law, we call that a "heckler's veto"). What would you do if you were Mr. Sampson?

Posted by Howard Wasserman on March 6, 2008 at 12:05 PM | Permalink

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» Charged with racial harassment... from Overlawyered
...for reading a book? And an anti-racist book at that? That's what FIRE (Foundation for Individual Rights in Education) says happened to Keith Sampson, a student with a sideline job on the IUPUI (Indiana University... [Read More]

Tracked on Mar 7, 2008 9:37:10 AM

Comments

Howard, unquestionably you are correct about the application of the First Amendment to a private workplace. In the context of an employer deciding whether it can discipline an employee for the expression of views, I'm not sure there is much of a practical difference. And out beyond academia and even law firms, I suspect ordinary people equate their right of expression with the First Amendment. And that's usually the easiest way of referring to it.

We are, however, a rights-driven society. I think part of the grease that allows a civil society to operate is that regularly we back off testing the extremes of what those rights are in favor of getting along. Yes, you have the RIGHT to do what you are doing (read Mein Kampf, proselytize incessantly, stage anti-abortion demonstrations in front of the Holocaust Museum, burn a flag, drop f-bombs in front of my children), but I don't have to like it!

Posted by: Jeff Lipshaw | Mar 7, 2008 3:27:57 AM

Jeff:

Strictly speaking, of course, there really are no First Amendment rights in the work place, either because the employer is private (First Amendment does not apply) or because the employer is public (and under Connick/Pickering/Ceballos, the First Amendment may as well not apply). My concern is that the overwhelming and overriding fear of Title VII causes employers to go too far in the other direction and create an environment free of much expression, where it might not be OK to read a book, just to play it as safe as possible.

I also second Jim G's point: To equate reading ideas with endorsement of those ideas (and only the latter should be the basis for arguing that a person created a hostile environment) strikes me as anti-intellectual. As for why read it at work: Maybe he works 16 hour days at two jobs, then goes home to spend a little bit of time with his wife and kids before going to sleep--the 75 minutes he gets in breaks/lunch is the only time Ihe has to read and to stretch his mind.

Posted by: Howard Wasserman | Mar 6, 2008 9:15:55 PM

I find it troubling that merely reading a book implies agreement with its contents. True, someone reading "Mein Kampf" may get some odd looks, but unless the reader is bald and sporting swastika tattoos, most people should realize that she's reading for historical interest, not inspiration.

If something happened in this case beyond reading a book, then that should have been the basis of action. In Jeff Lipshaw's example, the proselytizing should have been (and, it sounds like, was) the focus of disciplinary action, not just reading the Bible.

Posted by: Jim G | Mar 6, 2008 6:31:05 PM

Jonathan, I agree that if all he had been doing was reading that book in the break room, he should never have been reprimanded in the first place.

I know enough from being on the inside of a lot of things that get reported on or speculated on from the outside that there's often more to the story. But, as I said, if he was just minding his own business, reading his book, and the title offended somebody, and that somebody complained, and the matter was investigated, and that's all it was, you're right, he never should have been reprimanded, so there never should have been an occasion for the "sorta" retraction.

Posted by: Jeff Lipshaw | Mar 6, 2008 4:14:58 PM

Prof. Lipshaw,

Would not part of the point here be that there should have been no response from IUPUI? That it should never have gotten this far?

The employee (Sampson) was treated unreasonably and irresponsibly (if one can believe any of the accounts, or the letters) by IUPUI - from the response of his supervisor to the failure of the AAO to appropriately investigate. (Can anyone possibly argue that point?) To have IUPUI's AAO cover up that glaring reality with a "no-fault, but watch it" letter is simply fuel on the proverbial fire.

The question is not entirely one of what IUPUI is legally entitled to do or not to do, but what Mr. Sampson's co-workers, supervisors, and the individuals in the AAO owe each other in charity, decency, and rational action.

This is idealism run amok, blinded by its own righteousness, attacking even supporters of racial equality in its rush to judgment.

-j.

Posted by: Jonathan | Mar 6, 2008 3:35:16 PM

I agree that if all he was doing was sitting in the break room reading this book, then the response from the officer was unduly critical in tone.

But the relationship between the exercise of First Amendment rights in the workplace and the employer's right to regulate is not as easy as all that. Let's assume that what he was doing was reading a Bible. Nobody could object to that. In my prior life (as the general counsel of a large company), however, we had a circumstance in which the person would not only be reading the Bible in the break room, but would consistently steer the conversation to fundamentalist proselytizing, to the point that nobody else wanted to use the break room when s/he was there. I sent a letter in which I affirmed his right to have religious material and paraphernalia in his office, and to read his books in the break room, but that his First Amendment rights were balanced against our right, as the employer, not to allow the employee to create an unacceptable workplace environment by forcing his religious views on others.

You can start to make the case harder, I think, by positing other hypotheticals. Suppose the employee decided that what he wanted to read in the break room was (a) Dick Gregory's famously and deliberately titled autobiography, (b) Mein Kampf, or (c) the Protocols of the Elders of Zion. I think one could reasonably say to the employee: "You know, of course, you have the right to sit and read whatever you want in the break room, but of the millions of books you could be reading here as opposed to in the privacy of your own home or your own office, you did manage to pick one with a title and cover that a reasonable person could expect to upset a lot of people. Indeed, one might ask whether the choice was deliberately provocative. Of course I cannot take you to task for exercising your First Amendment right, but I do have the right to question your judgment as well as your civility."

Posted by: Jeff Lipshaw | Mar 6, 2008 2:49:41 PM

Howard -- thanks for this very helpful post.

Posted by: Rick Garnett | Mar 6, 2008 1:12:58 PM

Get F.I.R.E. and the ACLU (if they have a spine on this issue) and the ACLJ involved. People who are interested, expecially those with a dog in the hunt (a.k.a. IUPUI students and taxpayers) can rally and write letters to the Governor and to their state representatives (as I have done).

-j.

Posted by: Jonathan | Mar 6, 2008 1:00:49 PM

A threatening letter from an "Affirmative Action Officer" would be funny if it weren't real.

The PC police are real, and they don't care how ridiculous the claims of offense are.

Posted by: 2005 | Mar 6, 2008 12:37:49 PM

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