March 05, 2008

posted by Paul Secunda

Thanks Paul, amazing story. The great irony is that his punishment--having to sit apart from others when he reads the book--looks a whole lot like old fashioned segregation.

Thanks for the plug, Paul. For a couple of good examples, involving "ride em hard and put am away wet" and "coonass" see http://volokh.com/posts/1135946330.shtml

Paul, you hit almost all of the issues it raises. But you missed one: the issue of what in god's name is wrong with this country?

OK, assuming the facts are as an advocacy group says they are (not something I would wager a large amount of money on, although I have no reason to doubt this account), we have a bureaucratic process run amok at IUPUI. Let's not extrapolate from there to the impending heat death of the universe.

If this is all true, I hope he sues the employees, Marguerite Watkins and University for harassment, discrimination and preventing this poor man from exercising his free speech rights. Watkins should be fired and the AAO should be closed down. Anything short of that is absolutely INSANE!

Sampson's claim, assuming it to be as described, also inadvertently illustrates how much the Court has limited the ability of state employees to enforce the first amendment.

Sampson's remedies do not include a suit against IUPUI for violating his first amendment rights even though it is a state university; although the first amendment constrains IUPUI, the eleventh amendment protects it from section 1983 claims, and in any event, it is not a person suable under section 1983 in any court. Sampson can sue individual defendants for damages, but qualified immunity may protect them even if they violated the first amendment. He may have an ex parte Young suit against the governing officials of the university for prospective injunctive relief to vindicate his first amendment rights, but to reach the merits in that suit he may have to demonstrate that Ms. Charleston is a final policymaker for the university.

Modern civil rights statutes enacted under section five of the fourteenth amendment constitutionally strip states of their immunity under the eleventh amendment, but those statutes do not encompass free speech claims. Sampson may try to frame his claim as a race discrimination claim, but there is no evidence to suggest that he was discliplined because of his race.

Because IUPUI here acts as employer rather than as sovereign, any first amendment claim Sampson brings that does reach the merits hinges on the Pickering balancing test. IUPUI may per City of San Diego v. Roe discipline employees for off duty speech (here reading material visible to others) unless the speech is on a matter of public concern (presumably it is), and even then, may, depending on the outcome of the Pickering balancing test, still discipline for the speech. Although IUPUI should lose under Pickering, particularly if it engaged in viewpoint discrimination, the Court's sympathy to public employers sued for free speech violations is palpable in its recent decisions.

Finally, even if Sampson can prevail under the Pickering balancing test, he must also show that he has suffered a sufficiently severe adverse employment action to justify judicial intervention. Because he has not been fired, demoted, or even suspended without pay, he may have difficulty persuading a court that he has suffered an actionable adverse employment action.

In short, Sampson plays two very different roles here -- he is both a victim of a foolish public employer and of a jurisprudence that systematically curtails the free speech rights and remedies of state employees.

This is called "trying it on." It is a test for the complainant troublemakers to see how far they can push. We are bound to see more of this vis a vis Islam.

Paul, what makes it all the more absurd is that IUPUI's library carries that very book. Presumably they're being insensitive to black students as a result thereof.

Thanks for all the comments everyone. Some have suggested that this may be considered similar to posting a poster on a locker with offensive pictures. I don't believe so.

I think the crucial distinction for me is that whereas a poster is directed at co-workers for their consumption, reading a book on one's own is not. There does not appear to be evidence that he used the cover of the book to offend others or that he responded to inquiries belligerently, but if he did, and there is no way of knowing for sure, that might be separate grounds for discipline.

Though I would argue that the remedy of not allowing him to read his book is not appropriate discipline by a government actor. Also, at least in this concededly one-sided story, it does not appear the intellectual value of such a book was taken seriously by those who investigated.

Finally, a commentator on this post on Workplace Prof points out that the school DID rescind the discipline after further thought this past February: http://nuvo.net/images/articles/022708/letter020708.pdf

Paul, that letter falls considerably short of the groveling apology that Sampson is due. Nor is there any recognition that the complaint was absurd on its face, or concession of error and hysterical overreaction on the part of IUPUI in its handling of the affair, all of which are warranted.

Agreed, Simon.

In.
Sane.

I wish I could live on the moon.

That letter functions (likely intentionally) as a warning--stop reading this book. It was not saying Sampson did nothing wrong--it was saying officials could not decide his intent, given the conflict between what Sampson said and what his co-workers believed. The last paragraph clearly implies that if Sampson continues to read that book at work and co-workers continue complaining, the intent question is going to get resolved against him.

Eating a doughnut is considered racial harassment. You're offending all the people with holes in their stomachs (yes, there are people like that around (of a certain race), and yes, they're very sensitive about their disease/disability)...

So, next time you're eating a doughnut, keep a wary eye out - you may be charged for racial harassment one day. Don't say I didn't warn ya!

If you're a drudge fan: drudgetracker.com

What are these people doing at an institution of higher education?

If you can not tell the difference between content, context and intent you are missing some vital human traits and should probably stay away from society and die quietly.

"Ceci n'est pas un pipe." (René Magritte)

Entropy, people. It's coming, and there's nothing we can do to stop it. This story just proves it.

You demonstrated disdain and insensitivity to your coworkers who repeatedly requested that you refrain from reading the book

Co-workers who are so bigoted that they don't want to see someone reading a book about Notre Dame defeating the KKK are deserving of disdain.

Co-workers who are so brain damaged that they can't differentiate between supporting the KKK and defeating it are also deserving of nothing but disdain.

(Co-workers who are such arrogant jerks that they feel they have the right to determine other's reading choices, regardless of the reading matter, should be considered beneath contempt.)

Volokh is reporting that a new letter went out. As quoted in Volokh it said:

"This letter will replace my prior letter to you dated November 25, 2007.

I wish to clarify that my prior letter was not meant to imply that it is impermissible for you or to limit your ability to read scholarly books or other such literature during break limes. There is no University policy that prohibits reading such materials on break time. As was previously stated, you are permitted to read such materials during appropriate times.

I also wish to clarify that my prior letter to you was meant only to address conduct on your part that raised concern on the part of your co-workers. It was the perception of your co-workers that you were engaging in conduct for the purpose of creating a hostile atmosphere of antagonism. Your perception was that you were reading a scholarly work during break time, and should be permitted to do so whether or not the subject matter is of concern to your coworkers.

I am unable to draw any final conclusion concerning what was intended by the conduct. Of course, if the conduct was intended to cause disruption to the work environment, such behavior would be subject to action by the University. However, because I cannot draw any final conclusion in this instance, no such adverse disciplinary action has been or will be taken in connection with the circumstances at hand."

just think if he had worn a shirt that said "I support Israel" or "McCain 2008"...

MC,

The latter would be a partisan political t-shirt, so they could legitimately tell him not to wear it, and discipline him if he did. On the other hand, they'd also have to do that to anyone who wore an Obama or Clinton t-shirt.

Some have wondered how this could happen at a university. Where else in America today could such a thing happen?

Some have wondered how this could happen at a university. Where else in America today could such a thing happen?

Larry, considering that most of the insane things that happen in this world happen OUTSIDE universities, I'm going to have to answer your question with "just about anywhere."