Posted on May 21, 2010

Court: ‘Racially Charged’ E-Mail Is Protected

Bob Egelko, San Francisco Chronicle, May 21, 2010

College officials in Arizona were under no obligation to punish a professor who sent e-mails to fellow employees in 2003 denouncing a Latino celebration as racist, complaining about “multicultural stupor” and proclaiming the “superiority of Western civilization,” a federal appeals court in San Francisco ruled Thursday.

The messages from Walter Kehowski, a math professor at Glendale Community College near Phoenix, were constitutionally protected free speech and did not constitute harassment of Latino employees who received them, said the Ninth U.S. Circuit Court of Appeals.

“The government may not silence speech because the ideas it promotes are thought to be offensive,” Chief Judge Alex Kozinski said in the 3-0 ruling. The panel also included retired Supreme Court Justice Sandra Day O’Connor, sitting by temporary assignment.

The court overturned a judge’s decision that would have allowed a jury to decide whether the Maricopa Community College District, Kehowski’s employer, violated Latino employees’ right to be free of discrimination and harassment by refusing to fire or discipline the professor.


Kehowski has taught in the Maricopa district since 1998. In October 2003, he sent what the court described as three “racially charged” e-mails to all district employees.

One described Dia de la Raza, a celebration observed by some Latinos instead of Columbus Day, as “explicitly racist.” Another saluted Columbus Day as a time to “celebrate the superiority of Western civilization.”

The third message replied to accusations of racism, saying, “Boogie-boogie-boo to you,” and said the nation must pull itself “out of the multicultural stupor.” It also contained a link to Kehowski’s own Web site that said the only immigration reform needed was “preservation of White majority.”

The messages drew student protests and criticism from the district chancellor, who said nevertheless that any disciplinary action would violate academic freedom.

The suit by Latino employees argued that the e-mails constituted harassment, just like racial slurs spoken at work, and that the district was complicit because of its refusal to punish Kehowski. But the court said their real objection was to his viewpoint.