Legal Commentary

I was going to post this as a Comment on Rick's post on the looniness at IUPUI, but there is a lot of stuff to bring out, so I decided to make it a separate post. First, Paul Secunda discusses this at Co-Op, with some very good comments. He also announces that IUPUI rescinded the punishment, although with a letter that sounds a lot more like a warning than an apology (more on that in a second).

Rick asks whether it is possible that reading a well-reviewed work of scholarly history can "constitute[] racial harassment, or should be the ground for disciplinary action." Unfortunately, those are two very different things. No, it would not and could not be racial harassment under Title VII just to read a book at work that has KKK in the title, nor can it be harassment to stop reading such a book because a co-worker objects; any Title VII claim against IUPUI would fail. The problem is that the incentive structure of harassment law makes this very sort of disciplinary action against Sampson likely. IUPUI is so scared of getting sued by the allegedly harassed co-workers (even on a claim that is utterly meritless to the point of frivolous) that it is easier for it simply to punish Sampson. For reasons perfectly explained in one of the Comments to Paul's Co-Op post, Sampson has no remedy for what should be recognized as a violation of his First Amendment rights--not to mention everything a university should stand for. So IUPUI can save itself the lawsuit and punish Sampson with impunity.

As Paul notes, the punishment was rescinded, but in a letter that likely will (and likely was intended to) make Sampson think long and hard before doing any on-break reading ever again. First, the affirmative action officer who wrote the letter insists she only got involved because of the perception of Sampson's co-workers about his conduct (i.e., reading a scholarly historical account of real-world events) and the sense that he was reading that book to create a hostile environment. She then explains that punishment was rescinded only because she "was unable to draw any final conclusion about what was intended by the conduct." Of course, if Sampson continues to read this book and co-workers continue to complain, it is very likely that the affirmative action officer will draw conclusions about what he was intended, simply because Sampson continued to ignore his colleagues' objections to his reading that book (in ordinary First Amendment law, we call that a "heckler's veto"). What would you do if you were Mr. Sampson?