Legal News

State Trooper, Fired for Associating With KKK, Argues for Job Back

By Dan Slater

Consider this: In 2004, Robert Henderson, then a state trooper in Nebraska, joined an organization called the Knights Party after his wife left him for a hispanic man. The Knights Party is an affiliate of the Ku Klux Klan. In 2006, following a state patrol disciplinary hearing in which Henderson (pictured) told the investigator he joined the Knights Party to vent his frustration, he was fired from the force. An arbitrator then overturned Henderson’s firing, saying that it violated his First Amednment rights. Nebraska’s Attorney General, John Bruning, then appealed that decision and won in a lower Nebraska State Court. Yesterday, Henderson and his lawyer, Vincent Valentino, appealed to Nebraska’s Supreme Court to have Henderson reinstated.

Here are stories from the AP and the Omaha World-Herald.

We knew this was a great First Amendment case, but we just couldn’t for the life of us remember the law on it. So we called up Derek Shaffer, a con law prof at Stanford, to help us dissect the case. (Oddly enough, Shaffer was recently quoted in an Omaha World-Herald article about Nebraska’s flag burning law.)

“One of the two questions involved here,” said Shaffer, “is what to do with a binding arbitration decision. It’s quite difficult to get arbitration decisions overturned. A lower court judge has thrown out the arbitration decision, but the [supreme court] might say that’s not possible.” (Click here for a discussion on the Arbitration blog about common grounds for vacating an arbitration decision.)

“Now we get to the con law question,” continued Shaffer. “There is First Amendment jurisprudence that entitles public employees to certain rights of speech and association. First you ask whether the employee’s speech is speech on a matter of public concern. I’d assume that this speech, whatever some might think of the merits of speech associated with the KKK, is speech of public concern. And if that’s the case, then the second step is to balance the employee’s speech interest against the employer’s interest in regulating the workplace. Given that this is a law enforcement officer, and given the nature of the KKK’s message, I’d think the state has a strong interest in ensuring that law enforcement officers aren’t percevied to be racist.”

Shaffer said precedent might be a case called Pickering, in which a teacher was fired for griping to a newspaper that the school was spending too much money on sports.

LB’ers: How should the Nebraska high court come out? And let us know if you’re basing your view on arbitration or free speech.

Full post as published by Law Blog - WSJ.com on March 06, 2008 (boomark / email).