The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID M. RODRIGUEZ; JUDY
GONZALES POGGI; JOSE MENDOZA;
FRANK RIVERA; MARIO QUEZADA;
ESTHER ANAYA-GARCIA, on behalf
of themselves and all others
similarly situated,
Plaintiffs-Appellees,
v. No. 08-16073
MARICOPA COUNTY COMMUNITY
COLLEGE DISTRICT; THE GOVERNING D.C. No.
2:04-cv-02510-EHC
BOARD OF THE MARICOPA COUNTY OPINION
COMMUNITY COLLEGE DISTRICT,
Defendants,
and
RUFUS GLASPER; PHILLIP RANDOLPH,
in their official and individual
capacities,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
October 19, 2009—Tempe, Arizona
Filed May 20, 2010
7255
7256 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
Before: Sandra Day O’Connor, Associate Justice,*
Alex Kozinski, Chief Judge, and Sandra S. Ikuta,
Circuit Judge.
Opinion by Chief Judge Kozinski
*The Honorable Sandra Day O’Connor, Associate Justice of the United
States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C.
§ 294(a).
7258 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
COUNSEL
Richard S. Cohen, Troy P. Foster and Justin S. Pierce, Ford
& Harrison LLP, Phoenix, Arizona, for the defendants-
appellants.
David G. Hinojosa, Nina Perales and Diego Bernal, Mexican
American Legal Defense and Educational Fund (MALDEF),
San Antonio, Texas; and David G. Gomez and Michael J.
Petitti, Gomez & Petitti, Phoenix, Arizona, for the plaintiffs-
appellees.
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.
RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7259
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 dis-
trict 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.) Día 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 inhab-
itants of North 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
1
See Wikipedia, Columbus Day, at http://en.wikipedia.org/
Columbus_Day (last visited March 19, 2010).
7260 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
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 technol-
ogy policy encouraged faculty to develop district-hosted web-
sites 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 sub-
ject. . . . 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
RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7261
context, I want everyone in the [college] community
to know that personally and administratively, I sup-
port 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 ille-
gal, but none of us believe [his] actions were ethical or in
good taste.” Contemporary press accounts describe vocal stu-
dent protests against Kehowski.
A number of district employees also complained to the
administration that Kehowski’s statements had created a hos-
tile work environment. No disciplinary action was taken
against Kehowski, and no steps were taken to enforce the dis-
trict’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. Complaint at 4. The district court
granted 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 sum-
mary judgment to the president and chancellor on plaintiffs’
constitutional claim, including on the issue of qualified immu-
nity, and to the remaining defendants on both the constitu-
tional 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.
7262 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
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). “[W]here 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 jurisdic-
tion to review this determination, and that the question of
qualified immunity must therefore go to a jury. But the con-
tours of the right at issue, and the reasonableness of defen-
dants’ 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 offi-
cial would have been aware.
Qualified Immunity
[1] It’s clearly established in our circuit that public
employees are entitled under the Equal Protection Clause to
be free of purposeful workplace harassment on the basis of
protected status. See Alaska v. EEOC, 564 F.3d 1062, 1069
(9th Cir. 2009) (en banc); Bator v. Hawaii, 39 F.3d 1021,
1029 (9th Cir. 1994). Defendants therefore do not dispute that
employers who become aware of workplace harassment are
RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7263
required to take reasonable steps to make it stop. But they
claim they are entitled to summary judgment based on quali-
fied immunity because they were required to do no more than
they did in the circumstances presented here, and if they were
required to do more, such a duty was not clearly established.
See Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009). We
begin by addressing the precise scope of the district’s consti-
tutional obligation.
Plaintiffs may wish that the district had disciplined or dis-
missed Kehowski, but the district wasn’t required to do so.
When an employer is made aware of unlawful harassment,
employees are entitled to have the employer take reasonable
and appropriate steps to investigate and make it stop. Andrews
v. City of Philadelphia, 895 F.2d 1469, 1479-80 (3d Cir.
1990). A warning or other discipline, even dismissal, may be
the appropriate action in some circumstances, but the proper
object of an employer’s response is to deter and stop further
harassment, not to punish the harasser. See, e.g., Bator, 39
F.3d at 1029.
[2] Plaintiffs suggest the district should have applied its
existing anti-harassment policy to silence Kehowski as soon
as the nature of his speech became apparent, either by revok-
ing his access to the district’s technology resources or by
warning him that further speech would lead to discipline. It’s
true that a public employer’s refusal to enforce existing poli-
cies to stop unlawful harassment may violate the Equal Pro-
tection Clause. See, e.g., Flores v. Morgan Hill Unified Sch.
Dist., 324 F.3d 1130, 1135 (9th Cir. 2003). But Kehowski’s
speech was not unlawful harassment.
[3] Plaintiffs no doubt feel demeaned by Kehowski’s
speech, as his very thesis can be understood to be that they are
less than equal. But that highlights the problem with plain-
tiffs’ suit. Their objection to Kehowski’s speech is based
entirely on his point of view, and it is axiomatic that the gov-
ernment may not silence speech because the ideas it promotes
7264 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
are thought to be offensive. See Brandenburg v. Ohio, 395
U.S. 444, 448-49 (1969); Saxe v. State Coll. Area Sch. Dist.,
240 F.3d 200, 204 (3d Cir. 2001); DeAngelis v. El Paso Mun.
Police Officers Ass’n, 51 F.3d 591, 596-97 (5th Cir. 1995).
“There is no categorical ‘harassment exception’ to the First
Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see
also United States v. Stevens, No. 08-769, slip op. at 7 (U.S.
April 20, 2010) (“The First Amendment’s guarantee of free
speech does not extend only to categories of speech that sur-
vive an ad hoc balancing of relative social costs and bene-
fits.”).
[4] Indeed, precisely because Kehowski’s ideas fall outside
the mainstream, his words sparked intense debate: Colleagues
emailed responses, and Kehowski replied; some voiced opin-
ions in the editorial pages of the local paper; the administra-
tion issued a press release; and, in the best tradition of higher
learning, students protested. The Constitution embraces such
a heated exchange of views, even (perhaps especially) when
they concern sensitive topics like race, where the risk of con-
flict and insult is high. See R.A.V. v. City of St. Paul, 505 U.S.
377, 391 (1992). Without the right to stand against society’s
most strongly-held convictions, the marketplace of ideas
would decline into a boutique of the banal, as the urge to cen-
sor is greatest where debate is most disquieting and orthodoxy
most entrenched. See, e.g., Gitlow v. New York, 268 U.S. 652,
667 (1925); id. at 673 (Holmes, J., dissenting). The right to
provoke, offend and shock lies at the core of the First Amend-
ment.
[5] This is particularly so on college campuses. Intellectual
advancement has traditionally progressed through discord and
dissent, as a diversity of views ensures that ideas survive
because they are correct, not because they are popular. Col-
leges and universities—sheltered from the currents of popular
opinion by tradition, geography, tenure and monetary
endowments—have historically fostered that exchange. But
that role in our society will not survive if certain points of
RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7265
view may be declared beyond the pale. “Teachers and stu-
dents must always remain free to inquire, to study and to eval-
uate, to gain new maturity and understanding; otherwise our
civilization will stagnate and die.” Keyishian v. Bd. of Regents
of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967)
(quoting Sweezy v. New Hampshire, 354 U.S. 234, 250
(1957)). We have therefore said that “[t]he desire to maintain
a sedate academic environment . . . [does not] justify limita-
tions on a teacher’s freedom to express himself on political
issues in vigorous, argumentative, unmeasured, and even dis-
tinctly unpleasant terms.” Adamian v. Jacobsen, 523 F.2d
929, 934 (9th Cir. 1975).
[6] The First Amendment also demands substantial defer-
ence to the college’s decision not to take action against
Kehowski. The academy’s freedom to make such decisions
without excessive judicial oversight is an “essential” part of
academic liberty and a “special concern of the First Amend-
ment.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265,
312 (1978) (citation omitted) (internal quotation marks omit-
ted); see also Brown v. Li, 308 F.3d 939, 952 (9th Cir. 2002);
Edwards v. Cal. Univ. of Penn., 156 F.3d 488, 492 (3d Cir.
1998) (Alito, J.). If colleges are forced to act as the hall moni-
tors of academia, subject to constant threats of litigation both
from professors who wish to speak and listeners who wish to
have them silenced, “[m]any school districts would undoubt-
edly prefer to ‘steer far’ from any controversial [professor]
and instead substitute ‘safe’ ones in order to reduce the possi-
bility of civil liability and the expensive and time-consuming
burdens of a lawsuit.” Monteiro v. Tempe Union High Sch.
Dist., 158 F.3d 1022, 1030 (9th Cir. 1998). To afford aca-
demic speech the breathing room that it requires, courts must
defer to colleges’ decisions to err on the side of academic
freedom. Otherwise, schools will inevitably reassess whether
hiring a lightning rod like Kehowski—or, for that matter,
Larry Summers or Cornel West—is worth the trouble.
These First Amendment principles must guide our interpre-
tation of the right to be free of purposeful workplace harass-
7266 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
ment under the Equal Protection Clause. When Congress
enacted the Fourteenth Amendment, it enshrined a concept of
liberty that has been understood to include the “general prin-
ciple of free speech.” Gitlow, 268 U.S. at 672 (Holmes, J.,
dissenting); see also Meyer v. Nebraska, 262 U.S. 390, 400
(1923). And, in Meyer, the Supreme Court relied on the fact
that the “American people have always regarded education
and acquisition of knowledge as matters of supreme impor-
tance” to find that the Fourteenth Amendment protected a
teacher’s right “to teach and the right of parents to engage
him so to instruct their children.” Id. Since then, the Four-
teenth Amendment has consistently been held to incorporate
the First Amendment’s protection of free speech and aca-
demic freedom against the states. See, e.g., Sweezy, 354 U.S.
at 255; Keyishian, 385 U.S. at 604.
History likewise suggests that the Fourteenth Amendment
was intended to extend, and not retract, the freedoms
enshrined in the First. In the run up to the Civil War, profes-
sors and colleges played a key role in the spread of abolition-
ist ideas. See Robert Bruce Slater, The American Colleges
That Led the Abolition Movement, J. Blacks in Higher Educ.,
Sept. 1995 at 95-97. The South moved to harshly suppress
abolitionism as dangerous and incendiary, and Republicans
responded by making “demands for free speech a centerpiece
of their political program.” Michael Kent Curtis, The 1859
Crisis Over Hinton Helper’s Book, The Impending Crisis:
Free Speech, Slavery, and Some Light on the Meaning of the
First Section of the Fourteenth Amendment, 68 Chi.-Kent L.
Rev. 1113, 1151 (1993); see also id. at 1131, 1134-38. It can
hardly be surprising, then, that the Reconstruction Congress
sought to protect freedom of speech along with other funda-
mental liberties when it enacted the Fourteenth Amendment.
See, e.g., id. at 1172-74. Free speech has been a powerful
force for the spread of equality under the law; we must not
squelch that freedom because it may also be harnessed by
those who promote retrograde or unattractive ways of
thought.
RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7267
[7] We therefore doubt that a college professor’s expres-
sion on a matter of public concern, directed to the college
community, could ever constitute unlawful harassment and
justify the judicial intervention that plaintiffs seek. See
Eugene Volokh, Comment, Freedom of Speech and Work-
place Harassment, 39 UCLA L. Rev. 1791, 1849-55 (1992).
Harassment law generally targets conduct, and it sweeps in
speech as harassment only when consistent with the First
Amendment. See R.A.V., 505 U.S. at 389-90. For instance,
racial insults or sexual advances directed at particular individ-
uals in the workplace may be prohibited on the basis of their
non-expressive qualities, Saxe, 240 F.3d at 208, as they do not
“seek to disseminate a message to the general public, but to
intrude upon the targeted [listener], and to do so in an espe-
cially offensive way,” Frisby v. Schultz, 487 U.S. 474, 486
(1988). See, e.g., Flores, 324 F.3d at 1133, 1135; Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 60, 73 (1986). But
Kehowski’s website and emails were pure speech; they were
the effective equivalent of standing on a soap box in a campus
quadrangle and speaking to all within earshot. Their offensive
quality was based entirely on their meaning, and not on any
conduct or implicit threat of conduct that they contained.
[8] In the context of a supervisory relationship, advocacy
of discriminatory ideas can connote an implicit threat of dis-
criminatory treatment and could therefore amount to inten-
tional discrimination.2 But plaintiffs have not alleged that
Kehowski’s speech was made in such a context, or that he has
any control over their employment. Nor did the administration
2
Because this is not such a case, we cannot hold what standard should
be applied to determine whether advocacy of discriminatory ideas by a
supervisor contains an implicit threat and constitutes harassment. Suffice
to say that supervisors retain First Amendment rights and their speech is
entitled to significant breathing space before it will be deemed harassment.
Cf. Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 372 (9th Cir. 1996)
(speech can only be prohibited as a threat if a reasonable person would
foresee that it would be interpreted as a serious expression of intent to act
in the threatened manner).
7268 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
in any way endorse Kehowski’s views or adopt them as the
district’s official position: Although Kehowski disseminated
his views using the district’s web servers and email list, pro-
viding such resources on a content-neutral basis to facilitate
campus discussion does not suggest official endorsement of
the resulting speech. See Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 841 (1995).
[9] Plaintiffs assert that the district could have applied its
harassment policy to suppress Kehowski’s speech because he
spoke in a limited or nonpublic forum. For the purpose of this
appeal, we assume plaintiffs are correct that the email list and
servers were limited or nonpublic forums. See Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49
(1983). But even in a nonpublic forum, state actors may not
suppress speech because of its point of view, id. at 46, and
that is exactly what application of the harassment policy to
Kehowski’s emails and website would have done. Others
could speak about race and culture without violating the pol-
icy; Kehowski’s speech would be singled out for suppression
because of his disfavored opinions on those issues.
Nor are we impressed by plaintiffs’ suggestion that the dis-
trict could have suppressed Kehowski’s speech by limiting
discussion on its mailing list and web servers to official
school business. We assume the First Amendment would not
prevent the district from restricting use in that manner. See id.
at 49; Desyllas v. Bernstine, 351 F.3d 934, 943-44 (9th Cir.
2003). We also assume plaintiffs are correct that the district
already had such a written policy, although it was not
enforced. Plaintiffs don’t allege that defendants selectively
applied this policy in favor of Kehowski’s speech; their claim
is that once Kehowski began to speak, defendants were
obliged to apply the policy to silence Kehowski, even if that
meant they had to also silence everybody else.
The power to limit or close a forum does not entail any
such obligation. If speech is harassment, the proper response
RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7269
is to silence the harasser, not shut down the forum. And if
speech is not harassment, listeners who are offended by the
ideas being discussed certainly are not entitled to shut down
an entire forum simply because they object to what some peo-
ple are saying. Such a rule would contravene the First
Amendment’s hostility towards laws that “confer broad pow-
ers of censorship, in the form of a ‘heckler’s veto,’ upon any
opponent of” certain points of view. Reno v. ACLU, 521 U.S.
844, 880 (1997). Because some people take umbrage at a
great many ideas, very soon no one would be able to say
much of anything at all.
[10] We therefore conclude that defendants did not violate
plaintiffs’ right to be free of workplace harassment. See Pear-
son, 129 S. Ct. at 818. The district court’s finding that defen-
dants’ failure to respond to the emails created a jury question
as to discriminatory purpose does not bar a grant of immunity,
as defendants may not be liable unless plaintiffs show both
conduct constituting harassment and a discriminatory purpose
behind the employer’s failure to respond. See Bator, 39 F.3d
at 1029. Because we find as a matter of law that plaintiffs
have not met the first of those requirements, and therefore
cannot show a constitutional violation, we reverse the district
court’s denial of qualified immunity and do not reach plain-
tiffs’ additional argument that the scope of the right was not
clearly established. On remand, the district court shall recon-
sider its rulings on the remaining defendants’ summary judg-
ment motions to ensure that they are consistent with our
ruling today.
***
It’s easy enough to assert that Kehowski’s ideas contribute
nothing to academic debate, and that the expression of his
point of view does more harm than good. But the First
Amendment doesn’t allow us to weigh the pros and cons of
certain types of speech. Those offended by Kehowski’s ideas
should engage him in debate or hit the “delete” button when
7270 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
they receive his emails. They may not invoke the power of the
government to shut him up.
REVERSED.