On December 17, 2012 the Sixth Circuit held that the speech of a high-level Human Resources official, who wrote publically against the very policies that her government employer charged her with creating, promoting, and enforcing, is not considered protected speech under the First Amendment.[i]
The case involved Plaintiff-Appellant Crystal Dixon, the interim Associate Vice President for Human Resources for two merged campuses: the University of Toledo (the “University”) and the Medical College of Ohio (the “College”). Dixon’s controversial speech was prompted by an editorial in the Toledo Free Press entitled, “Gay rights and wrongs” that implicitly compared the civil-rights movement with the gay-rights movement.[ii] The article also discussed the disparity between the University employees who received domestic-partner healthcare benefits and College employees who did not.[iii]
In response, Dixon wrote an op-ed column entitled “Gay rights and wrongs: another perspective.” Dixon rejected the comparison between the gay-rights movement and the civil-rights movement, stating “I cannot wake up tomorrow and not be a Black woman….[yet] thousands of homosexuals make a life decision to leave the gay lifestyle.”[iv] With regard to the disparate treatment of University and College employees, Dixon wrote that while the University was working to address the issue, the claim that homosexual employees were being denied benefits “avoids the fact that ALL employees across the two campuses regardless of their sexual orientation, have different benefit plans.”[v] As a result of her editorial, Dixon was terminated because her speech was considered in direct contradiction to University policies and procedures and placed her ability to lead at risk.[vi]
After the Northern District of Ohio granted summary judgment in favor of Defendants Lloyd Jacobs, University President, and William Logie, Vice President for Human Resources and Campus Safety, Dixon appealed to the United States Court of Appeals for the Sixth Circuit.[vii]
The Sixth Circuit’s decision focused on Dixon’s First Amendment retaliation claim. Using the burden-shifting framework, the Court analyzed whether the speech was protected. In order to find that Dixon’s speech was protected Dixon needed to show that: (1) her speech was a matter of public concern; (2) her speech was not made pursuant to her official duties as Associate Vice President of Human Resources; and (3) her free speech interests outweighed the efficiency interests of the government as employer pursuant to the Pickering balancing test.[viii] However, if the presumption set forth in Rose v. Stephens applies then the Pickering balance test is presumed to favor the government as a matter of law.[ix] The Rose presumption applies when a discharged employee (1) holds a confidential or policymaking position, and (2) has spoken on a matter related to political or policy views.
The court ruled that the Rose presumption applied. Examining the inherent duties of the position, rather than Dixon’s actual tasks, the court determined that the first prong of Rose requiring Dixon to hold a confidential or policymaking position was satisfied. The court found that Dixon had “appointing authority” and was responsible for “recommending, implementing, and overseeing human resource policies and procedures that support the university’s strategic direction,” “representing the University in relevant employee relations actions” before federal and state agencies, and “answering grievances, issuing disciplinary and corrective action, serving on various task forces, supervising approximately forty employees, overseeing benefits administration, setting compensation, and making presentations at town-hall meetings.”[x] The court also determined that the second prong of speaking on a political or policy issue was satisfied because Dixon’s public statement “directly contradict[ed] several…substantive policies instituted by the University” regarding promoting diversity and providing a safe environment for the LGBT community.[xi] Therefore, the court affirmed the district court’s grant of summary judgment.
The Sixth Circuit’s ruling has considerable implications for University officials. The first element of Rose requires the discharged employee to hold a confidential or policymaking position. However, universities are generally large institutions with thousands of students. This requires many university officials to have discretionary authority. Each department of a university could have one or more people in charge of implementing policies and overseeing employees. Therefore, in a university setting, a significant number of employees may find that they fall under the first prong of Rose as a result of their job responsibilities, despite the fact that this prong is intended to be limited to specific categories of individuals.
Additionally, the second prong of Rose requires the discharged employee to have spoken on a matter related to political or policy views. Yet,higher education institutions usually have written policies on numerous issues that in some way relate directly or indirectly to the school. Depending on the size of the university and the breadth of its policies, policymaking employees could have their right to free speech unreasonably restricted, especially since the Sixth Circuit’s decision implies that the second prong of Rose will apply whenever a policymaking employee speaks on an issue that contradicts a university policy. This is certainly a concern for university employees who are scholars, like professors, since a restriction on their ability to write freely could also damage the idea of universities as research institutions. Therefore, the Sixth Circuit’s overly broad ruling may encompass situations it was not intended to address.
[i] Dixon v. Univ. of Toledo, No. 12-3218, 2012 WL 6554693, *1 (6th Cir. Dec. 17, 2012).