ACLU Letter Urging Kansas Public Library Not to Censor Employee for Discussing Historic Sodomy Ruling

BY FACSIMILE AND OVERNIGHT MAIL

David Leamon
Director
Topeka and Shawnee County Public Library
1515 SW 10th Avenue
Topeka, KS 66604

Dear Mr. Leamon:

We at the American Civil Liberties Union and the American Civil Liberties Union of Kansas and Western Missouri represent Bonnie Cuevas, an administrative employee of the Topeka and Shawnee County Public Library.  Based on the information that we have received from Ms. Cuevas, we have concluded that library managers have violated her constitutional right to free speech by absolutely prohibiting her from speaking about Lawrence v. Texas - the landmark decision of the Supreme Court about gay and lesbian relationships - at work.  As the director of a public library, you presumably share our regard for the constitutional right to free speech.  We seek to work with you to resolve this matter without resort to litigation.

Ms. Cuevas seeks only to speak about Lawrence v. Texas in the workplace to the same extent that other library employees are permitted to speak about other matters of public concern in the workplace.  Other library employees may, within reason, speak with co-workers and receive calls about other matters of public (as well as private) concern; Ms. Cuevas seeks only to do the same about Lawrence v. Texas.

Background

On June 26, 2003, the Supreme Court issued its landmark decision in Lawrence v. Texas.  In its decision, the Supreme Court stated that, where gay and lesbian people are concerned, ""the State cannot demean their existence or control their destiny by making their private sexual conduct a crime.""  As with any landmark decision of the Supreme Court, Lawrence v. Texas immediately sparked meaningful dialogue - in this case, about gay and lesbian relationships - at the dinner table, in the classroom, and around the water cooler.

That day, Ms. Cuevas was approached by a few co-workers who wanted to express their joy about the decision.  In addition, Ms. Cuevas received a few unsolicited calls from friends who wanted to notify her of the decision, and placed one call to a friend to notify him of it.  Ms. Cuevas also received one unsolicited call from a reporter who wanted a comment on the significance of the decision for gay and lesbian people and their families.  Each conversation lasted only a few minutes.  None compromised her job performance.  Although the succession of conversations was atypical of Ms. Cuevas, it was not atypical of a library employee learning of joyful news.

The following day, Ms. Cuevas received one more unsolicited call from a friend about the decision.  Again, the conversation lasted only a few minutes and did not compromise her job performance.  Thereafter, two library managers approached Ms. Cuevas and told her that she was absolutely prohibited from speaking about Lawrence v. Texas at work.  They said that, although they had been willing to allow her to speak - and even to receive calls from reporters - about Lawrence v. Texas at work the previous day, they were not willing to do so anymore.  As the sole justification for the absolute censorship, the library managers cited a complaint by a co-worker that the speech had created a ""hostile work environment.""

Library managers violated federal constitutional law

The First Amendment to the Constitution prohibits a public employer from censoring the speech of a public employee in the workplace if the employee is speaking about a matter of public concern and is not causing an actual disruption in the workplace.

When Ms. Cuevas was speaking about Lawrence v. Texas, a landmark decision of the Supreme Court about gay and lesbian relationships, she was speaking about a matter of public concern.  See Rankin v. McPherson, 483 U.S. 378, 384-87 (1987).  In fact, she was speaking about a matter of concern not only to the public in general but also to the library in particular.  The interests of a public employer are best served when tolerance and respect for gay and lesbian people are fostered.  This is so because a public employer risks liability under the Equal Protection Clause of the Constitution if its gay or lesbian employees suffer harassment or other discrimination in the workplace on account of their sexual orientation.

Furthermore, Ms. Cuevas was not causing an actual disruption in the workplace merely because a co-worker - indeed, a co-worker with whom Ms. Cuevas does not work closely - found the speech to be disagreeable.  See Moore v. City of Wynnewood, 57 F.3d 924, 934 (10th Cir. 1995) (""The government cannot rely on merely speculative allegations that certain statements caused or will cause disruption to justify the regulation of employee speech."") (citation omitted); Schalk v. Gallemore, 906 F.2d 491, 496 (10th Cir. 1990) (""The government must produce evidence of an actual disruption of services which results from the employee's speech."") (citation omitted); see also Connick v. Myers, 461 U.S. 138, 152 (1983) (""We caution that a stronger burden may be necessary if the employee's speech more substantially involved matters of public concern."").  Certainly, when Ms. Cuevas was speaking about Lawrence v. Texas, she did not create a ""hostile work environment.""

Without a doubt, library managers violated federal constitutional law when they absolutely prohibited Ms. Cuevas from speaking about Lawrence v. Texas at work.

We seek written assurances that, so long as Ms. Cuevas does not cause an actual disruption in the workplace, she may speak about Lawrence v. Texas and related matters of public concern at work.  We ask you to contact Ken Choe at (212) 549-2553 or Pedro Irigonegaray at (785) 267-6115 so that we may discuss how best to resolve this matter.

Sincerely,

Kenneth Y. Choe
Staff Attorney
American Civil Liberties Union

Dick Kurtenbach
Executive Director
ACLU of Kansas and Western Missouri

Pedro Irigonegaray
Cooperating Attorney
ACLU and ACLU of Kansas and Western Missouri

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