Sometimes the Klansman is Right: Freedom of Association Lynched by Nebraska Supreme Court

Robert Henderson

I reported last March on the case of Robert Henderson, a Nebraska State Patrolman who joined the KKK, and for that he was terminated by the Nebraska State Patrol. His case has been resolved by the Nebraska Supreme Court, and not only did he lose — I think we all did.

The Background

Whatever we may think of Henderson’s decision to join the Klan, it was clearly his First Amendment right to do so. However, the Nebraska State Patrol thought otherwise and terminated him because their internal investigator found that Henderson’s membership in the KKK “reflected negatively on the State Patrol and brought the State Patrol into disrepute. (Op. at 242). The State Patrol fired him, and he brought his case before an arbitrator (a common occurrence in employment law cases), and the arbitrator determined that Henderson’s termination violated his collective bargaining agreement because it was a violation of his First Amendment rights to terminate him for merely belonging to a disfavored group. (Op. at 242). However, the State filed suit to vacate the arbitrator’s decision, and the Nebraska state court set aside the decision on the grounds that there was a “well defined and dominant public policy of [the] state,” which was violated by reinstating Henderson to his duties as a State Patrolman. (Op. at 242).

The Majority – Legal Goatse

The Nebraska Supreme Court sided with the state and upheld the termination. The court said that it might be appropriate for Henderson to bring a civil rights claim for a violation of his constitutional rights, but that the arbitrator’s award reinstating Henderson to his position was unenforceable as a matter of public policy. (Op. at 245).

The opinion is nothing less than legal goatse. The Nebraska Supreme Court discussed the nature and principles of arbitration, then it discussed the “public policy exception.” For laypeople, when a court decides something as a matter of public policy, it essentially makes its decision based on what it thinks is a “good idea.” This is not necessarily a negative exercise. It is certainly within a court’s power to do so, and this is the power that allows a court to look at a terrible result into which the law may have hog-tied it, and to say “since we think this kind of decision would be absurd, we won’t render it that way.” However, a court should not use public policy as a trump card. This should be its last resort, and public policy should never trump the Constitution — the Constitution is presumed to be solid public policy in itself.

The Court gives us an overview of Henderson’s KKK activities, which were rather innocuous. Henderson joined the KKK in 2004 after his wife left him for a Hispanic fella. He made a few mild posts on a couple of KKK message boards under a pseudonym. (Op. at 253). Then, the court gives us a brief overview of the KKK and what complete douchebags they are. (Op. at 254) Then the court circled back to public policy, discussing Nebraska public policy:

The State of Nebraska was founded only a year or two after the Ku Klux Klan. Nebraska entered the Union on March 1, 1867, upon the “fundamental condition,” imposed by Congress as a requirement for Nebraska’s statehood, that “there shall be no denial of the elective franchise, or of any other right, to any person, by reason of race or color.” Among the first official acts of the newly assembled Nebraska Legislature was to transmit to the President of the United States its authenticated assent to that condition, so that the President could proclaim Nebraska’s admission to the Union. The principle that laws should be enforced without regard to race is, in this sense, not only a fundamental public policy of the State of Nebraska—it is the most fundamental public policy of the State, as the condition upon which Nebraska’s admission to the Union depended.

It is nice that Nebraska doesn't take kindly to this kind of thing... but what about the First Amendment?

That “fundamental condition,” as an expression of public policy, is reflected throughout Nebraska law. The Nebraska Constitution provides that “[n]o person shall be . . . denied equal protection of the laws” and, as recently amended, also provides that “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” And since 1867, this state’s motto, expressed on the Great Seal of the State of Nebraska, has been “Equality Before the Law.” (Op. at 259-260)

After giving us this noble history of the Great State of Nebraska, the court explains that “Efficient law enforcement requires mutual respect, trust, and support.” (Op. at 263) It then looks to my beloved Commonwealth of Massachusetts for guidance on such matters. Expressing agreement with the Massachusetts Supreme Judicial Court, the Nebraska Supreme Court wrote:

we hold that Nebraska public policy precludes an individual from being reinstated to serve as a sworn officer in a law enforcement agency if that individual’s service would severely undermine reasonable public perception that the agency is uniformly committed to the equal enforcement of the law and that each citizen of Nebraska can depend on law enforcement officers to enforce the law without regard to race. We emphasize that this public policy is only implicated by behavior of the gravest nature. But we find that Henderson’s knowing and willing affiliation with the Ku Klux Klan is such behavior. (Op. at 263-264).

As a result, reinstating Henderson to his position would violate Nebraska’s public policy.

In joining [the KKK], he endorsed a point of view that is completely antithetical to the principles of Nebraska law that he was bound by oath to enforce. He provided direct financial support for the Ku Klux Klan’s racist activities. And his membership has provided the Ku Klux Klan with valuable publicity and propaganda.
…
One cannot simultaneously wear the badge of the Nebraska State Patrol and the robe of a Klansman without degrading what that badge represents when worn by any officer. (Op. at 265).

The Dissent – The Minority Gets it Right

The Nebraska Supreme Court may have felt that it was doing the right thing in this case, but as a First Amendment advocate I must reluctantly side with the Klansman. I believe that the Court created dangerous precedent, which was not far-reaching, but which knocked out just a bit of plaster from the wall protecting our right to freedom of association. In this case, I think the two judges who dissented got it right.

In this case, the arbitrator found that Henderson was fired not “because of his actions on the job,” but, rather, “because of his beliefs and because he sought out others who shared his beliefs.” The arbitrator determined that “the antagonism [Henderson] seems to feel towards non-white racial groups has never reared its ugly head on the job” and that the State Patrol “was not able to point to a single instance on the job” where Henderson’s actions “exhibited any hatred, anger, disgust, or discrimination towards any minority group.” The arbitrator found, based on the State Patrol’s own data, that Henderson conducted traffic stops “in a race-neutral manner.” The arbitrator found that while Henderson may have personal philosophies that would disgust many citizens of Nebraska, nevertheless, he has well- hidden those beliefs and they have not interfered with his impartial enforcement of the law. The Arbitrator has been persuaded that, to just about anyone he knows or interacts with professionally, [Henderson] projects himself as “an example of stability, fidelity and morality.” Furthermore, there is no evidence or credible testimony that [Henderson’s] affiliation with the Knight’s Party/ KKK impaired “the operation or efficiency of the State Patrol or the employee” or that his reinstatement will likely impair “the operation or efficiency of the State patrol or the employee.”(Dissenting Op. at 267)

The arbitrator found that there was not even “any minimally-persuasive evidence that [Henderson’s] actions or beliefs would cause disruptions in [Henderson’s] ability to effectively work with the Patrol’s black Troopers, or that [Henderson’s] actions or beliefs would cause the Patrol difficulties with respect to the morale, efficiency, or good order of the State Patrol.” (Dissenting Op. at 268).

The Dissent agrees with the majority that it is, and should be, the public policy of Nebraska that the law should be enforced in a non-discriminatory manner. However, the arbitrator found absolutely no facts to support a conclusion that Henderson would act in a discriminatory manner.

And it cannot be said on this record that such conduct is even likely, given the arbitrator’s finding that despite his personal beliefs, Henderson has never breached his duty to enforce the law fairly and impartially in the past. With respect to his future conduct, Henderson would be bound by his oath to enforce the law fairly and in a nondiscriminatory manner, and he would be subject to the same civil and criminal liabilities as any other public officer if he failed to do so.(Dissenting Op. at 269)

The Dissent correctly analyzes the issue by criticizing the majority for substituting its perception of the facts for the findings rendered by the arbitrator, and by ignoring some curative instructions given by the arbitrator. But, the most poetic language in the Dissent is this passage:

I am concerned that the majority understates the significance of the arbitrator’s finding that Henderson’s Paperworkers v. Misco, Inc., supra note 4. discharge violated his First Amendment rights. Again, while we may disagree strongly with this finding, we are bound by it in the procedural posture of this case. That being so, the result reached by the majority necessarily implies that it is willing to ignore the State’s violation of Henderson’s constitutional rights because if he were reinstated, the public may perceive that he may violate someone else’s rights in the future, despite the arbitrator’s specific findings that he has never done so in the past. In my view, this apparent subordination of individual constitutional rights to the “greater good” poses a far greater risk of harm to the public policy of this state than reinstating one misguided trooper and reassigning him to some mundane position well behind the front lines of law enforcement, where he would pose no actual or reasonably perceivable threat to the mission of the State Patrol or the welfare of the public it serves.(Dissenting Op. at 273-274).

Unfortunately, in cases like this, the unpopular cause is often the loser. Courts lack the backbone to back the “bad guy” and don’t realize that the next disfavored group may be an Islamic religious group, the American Socialist Party, or simply the party out of political power.

This decision is an awful example of the judiciary failing to exercise proper judicial restraint. While I wish the KKK would simply go away, judicial fiat will not accomplish this task. On the other hand, enough judicial fiats, and nothing may be left of the First Amendment. Shame on the Nebraska Supreme Court.

Just as importantly, I think that this kind of decision lends strength to the Klan, but takes it away from those of us who oppose its views. If we want to silence the Ku Klux Klan and starve it of members, we can do it by winning in the marketplace of ideas. My beliefs are strong enough that they can stand forever in opposition to those of the KKK. I am disappointed that the Supreme Court of Nebraska does not have the same degree of faith.