Legal Times
The American Freedom Law Center's Robert Muise
A university administrator fired for writing a newspaper editorial asserting that homosexuality is a choice has lost an appeal in her retaliation lawsuit against the school.
The U.S. Court of Appeals for the Sixth Circuit on December 17 affirmed a lower court ruling that threw out Crystal Dixon's lawsuit against the University of Toledo, where she worked as an associate vice president for human resources until she wasterminated in 2008.
The appeals panel ruled that her statements in a Toledo Free Press editorial that gays were not "civil rights victims" on par with African Americans because they choose a "homosexual lifestyle" were not constitutionally protected. (Dixon is African American.)
The appeals panel ruled that because her editorial went against the very civil rights policies that she was responsible for creating, promoting and enforcing at the public university, her claims of unlawful retaliation for exercising her constitutional rights failed.
"Dixon's public statement implying that LGBT [lesbian, gay, bisexual and transgender] individuals should not be compared with and afforded the same protections as African Americans directly contradicts several such substantive policies instituted by the University," wrote Judge Karen Moore, for the three-judge panel.
Representing Dixon was Robert Muise, senior counsel at American Freedom Law Center, a public interest law firm in Ann Arbor, Mich., which describes itself on its website as an advocate for Judeo-Christian values.
Dixon will file a motion for an en banc rehearing, and, failing that, appeal for a U.S. Supreme Court review, Muise said.
The court's reasoning, he said, "erodes First Amendment freedoms."
Dixon's April 4, 2008, editorial followed an editorial written by Toledo Free Press' Editor in Chief Michael Miller, in which he compared the civil-rights movement with the gay-rights movement.
"As a middle-aged, overweight white guy with graying facial hair, I am America's ruling demographic, so the gay rights struggle is something I experience secondhand, like my black friends' struggles and my wheelchair-bound friend's struggles," Miller wrote.
He went on to write about a perceived denial of health-care benefits to same-sex couples who had become employees at the university through its merger with a medical college.
Dixon responded two weeks later to Miller's editorial with one of her own. In it, she did not identify herself as an administrator at the university.
"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. I am genetically and biologically a black woman and very pleased to be so as my Creator intended. 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," she wrote.
Three days after her editorial was published, the school placed Dixon on paid administrative leave. Following an administrative hearing in May 2008, in which she asserted that she wrote the editorial as a private citizen, the university fired her. The school wrote in her termination letter that her position was "in direct contradiction to university policies and procedures as well as the core values" of the school.
Dixon filed a civil rights claim under §1983 of the U.S. Code in December 2008, claiming violations of First and Fourteenth Amendment rights against the university and some of its administrators. U.S. District Judge David Katz granted summary judgment to the defendants and dismissed the case in February.
In rejecting her appeal, the Sixth Circuit found that the university's interest in promoting civil rights policies for its students and employees outweighed Dixon's free speech interests, given that she was an employee responsible for implementing and enforcing its policies.
"[T]he implication is clear: Dixon does not think LGBT students and employees of the university are entitled to civil-rights protections, even though the university, in part through the human resources department, expressly provides them," the court found.
Representing the University of Toledo Taft Stettinius & Hollister in Columbia, Ohio. Partner Elizabeth Stanton did not immediately respond to requests for comment.
Other judges on the appeals panel were Ronald Gilman and Raymond Kethledge.
Leigh Jones can be contacted at ljones@alm.com.
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