Fired University Official's 'Gay Lifestyle' Op-Ed Isn't Protected Speech
In 2008, Crystal Dixon — then-interim Associate Vice President for Human Resources at the University of Toledo — penned an op-ed column in the Toledo Free Press criticizing comparisons between the civil rights and gay rights movements.
Dixon wrote, "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 ... 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."
Shortly thereafter, Dixon was fired.
Dixon argued at an employment hearing that she had spoken in her column as a private citizen, and that her personal views did not affect her performance. To support her claim, Dixon noted that "there are one, possibly two practicing homosexuals in the Human Resources Department" and that she had hired both of them "with the perception that while they may be homosexual, more importantly they were competent, motivated and simply the best candidates for the jobs."
And she mentioned that she hired one of those individuals "after observing a questionable exchange between he and his male roommate in the parking lot one day."
Clearly, she is the very picture of open-mindedness.
Dixon sued the University, claiming First Amendment retaliation. The district court granted summary judgment to the defendants on all claims, and Dixon appealed. Monday, the Sixth Circuit Court of Appeals affirmed the district court, holding that Dixon's op-ed was not protected speech because she was a high-level human resources official who publicly railed against the policies that her government employer charged her with creating, promoting, and enforcing.
Under the Sixth Circuit's Rose v. Stephens analysis, Dixon held a category-two policymaking position at the University. In addition to holding a policymaking position, she spoke on a political or policy issue implicating the loyalty requirements of her position. The Sixth Circuit found that Dixon's public statement implying that LGBT individuals should not be compared with and afforded the same protections as African-Americans directly contradicted several substantive policies instituted by the University. Since Dixon spoke on policy issues related directly to her position at the University, her speech wasn't protected.
As the Supreme Court prepares to hear the Defense of Marriage Act and Prop 8 cases, there will be a flood of op-eds regarding whether same-sex couples are entitled to civil rights protections and benefits. Anyone with an opinion and a pen will suddenly be an expert on the topic. Some of those "experts" will be human resources professionals, and some will be fired for expressing their views.
Let the First Amendment retaliation fun begin.
- Crystal Dixon v. University of Toledo (Sixth Circuit Court of Appeals)
- David Bowie Loses First Amendment Retaliation Claim (FindLaw's D.C. Circuit Blog)
- Second Circuit Blocks First Amendment Retaliation Suit (FindLaw's Second Circuit Blog)
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