Do public employees in policy-making positions have different and lesser free speech rights than other public employees? They do and the point was further shown in the Sixth Circuit's recent decision in Dixon v. University of Toledo, No 12-3218 (December 17, 2012).
Crystal Dixon, an African-American woman, was the Associate Vice-President for Human Resources at the University of Toledo. Her responsibilities in that position included developing and implementing human resources policies, overseeing employee benefits, handling employee grievances, and promoting the university's diversity plan that specifically included sexual orientation within its equal opportunity and anti-harassment policies among other duties.
In response to an editorial column in the local paper, the Toledo Blade, that compared the gay rights movement with the civil rights movement, Dixon wrote and submitted a response titled "Gay Rights and Wrongs: Another Perspective," in which she rejected the comparison. Dixon did not identify her position with the university in her column. Dixon was terminated two weeks later. She filed suit claiming, among other things, that she was fired in retaliation for her exercise of First Amendment free speech rights. The district court granted the defendants summary judgment.
On appeal, the Sixth Circuit framed the question narrowly: "whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing is protected." The Sixth Circuit concluded that Dixon's was a policy-making position, that the presumption arising from its decision in Rose v. Stephens, 291 F3d 917 (6th Cir 2002), applied and held that Dixon's speech was not protected by the First Amendment.
The Sixth Circuit's opinion was written by Judge Karen Nelson Moore joined by Judges Ronald Gilman and Raymond Kethledge.
Robert L. Abell
www.RobertAbellLaw.com
