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 D.C. No.  COLLEGE DISTRICT; THE GOVERNING 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
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). 

7256 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
COUNSEL

Richard S. Cohen, Troy P. Foster and Justin S. Pierce, Ford

& Harrison LLP, Phoenix, Arizona, for the defendantsappellants. 

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 plaintiffsappellees. 

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.

7258 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
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 district 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 inhabitants 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). 

RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7259
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 technology policy encouraged faculty to develop district-hosted websites 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 subject. . . . 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

7260 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
context, I want everyone in the [college] community

to know that personally and administratively, I support 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 illegal, but none of us believe [his] actions were ethical or in

good taste.” Contemporary press accounts describe vocal student protests against Kehowski. 

A number of district employees also complained to the

administration that Kehowski’s statements had created a hostile work environment. No disciplinary action was taken

against Kehowski, and no steps were taken to enforce the district’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 summary judgment to the president and chancellor on plaintiffs’

constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional 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.

RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7261
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 jurisdiction to review this determination, and that the question of

qualified immunity must therefore go to a jury. But the contours of the right at issue, and the reasonableness of defendants’ 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 official 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

7262 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
required to take reasonable steps to make it stop. But they

claim they are entitled to summary judgment based on qualified 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 constitutional obligation. 

Plaintiffs may wish that the district had disciplined or dismissed 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 revoking 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 policies to stop unlawful harassment may violate the Equal Protection 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 plaintiffs’ suit. Their objection to Kehowski’s speech is based

entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes

RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7263
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 survive an ad hoc balancing of relative social costs and benefits.”). 

[4] Indeed, precisely because Kehowski’s ideas fall outside

the mainstream, his words sparked intense debate: Colleagues

emailed responses, and Kehowski replied; some voiced opinions in the editorial pages of the local paper; the administration 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 conflict 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 censor 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 Amendment.

[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. Colleges 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

7264 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
view may be declared beyond the pale. “Teachers and students must always remain free to inquire, to study and to evaluate, 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 limitations on a teacher’s freedom to express himself on political

issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.” Adamian v. Jacobsen, 523 F.2d

929, 934 (9th Cir. 1975). 

[6] The First Amendment also demands substantial deference 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 Amendment.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265,

312 (1978) (citation omitted) (internal quotation marks omitted); 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 monitors 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 undoubtedly prefer to ‘steer far’ from any controversial [professor]

and instead substitute ‘safe’ ones in order to reduce the possibility 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 academic 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 interpretation of the right to be free of purposeful workplace harassRODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7265
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 principle 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 importance” 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 Fourteenth Amendment has consistently been held to incorporate

the First Amendment’s protection of free speech and academic 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, professors and colleges played a key role in the spread of abolitionist 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 fundamental 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. 

7266 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
[7] We therefore doubt that a college professor’s expression 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 Workplace 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 individuals 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 especially 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 discriminatory treatment and could therefore amount to intentional 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

2Because 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). 

RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7267
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, providing 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 policy; 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 district 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

7268 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE
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 people are saying. Such a rule would contravene the First

Amendment’s hostility towards laws that “confer broad powers 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 Pearson, 129 S. Ct. at 818. The district court’s finding that defendants’ 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 plaintiffs’ additional argument that the scope of the right was not

clearly established. On remand, the district court shall reconsider its rulings on the remaining defendants’ summary judgment 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

RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE 7269
they receive his emails. They may not invoke the power of the

government to shut him up. 

REVERSED.

7270 RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE