Livingston continues with his racist rant on May 31 in saying “OK, officially, I now hate white people. I am a white people, for God’s sake, but can we just keep them—us—us out of my neighborhood?”
Livingston was initially found to have violated the university’s Policy Prohibiting Discrimination and Harassment by Rutgers’s Office of Employment Equity. The university then rejected his appeal. That decision was later reversed.
The decision is the correct one. These were statements made outside of school and expressed Livingston’s political and social views with what he claimed was an element of sarcasm. Yet, what if this were a professor speaking of his hate for black people or other minorities and wanting them out of his neighborhood? Would the result be the same? We do not know because Rutgers is not clear on where that sanctionable line is drawn.
The university’s standard emphasized the impact of comments on the university as the critical determinant in this analysis. The university’s Policy Prohibiting Discrimination and Harassment (“Policy”), Section 5 (A), defines “discrimination” as:
“an intentional or unintentional act which adversely affects employment or educational opportunities on the basis of membership in one or more protected classes. Rutgers provides equal employment opportunity to all its employees and applicants for employment regardless of their race, religion, color, national origin, ancestry, age, sex, sexual orientation, pregnancy, gender identity and expression, disability, genetic information, atypical hereditary cellular or blood trait, marital status, civil union status, domestic partnership status, military service, veteran status, and any other category protected by law.”
In its original findings against him, Rutgers dismissed the defense that statements were made as part of his private life and postings outside of school:
“His interest in free expression must also outweigh the government’s interest in the efficient and effective provision of services. In other words, his speech must be weighed against its potential impact on the university’s mission. Notably, a Government employer may take action against an employee for speaking on a matter of public concern if the employer’s mere prediction of disruption to its operations is reasonable. Jeffries v. Harleston, 52 F.3d 9 (2nd Cir. 1994).”
The university found that it was enough that his words were “offensive” and generated controversy. The later reversal is unclear on the extent to which the initial analysis was flawed. Indeed, it is relatively cursory in its treatment of the case.
What seems clear is that Livingston himself might not support another academic in the same position but the inverse message. In his own defense, Livingston insisted that such statements against all white people are permissible if you are black but not the inverse: “Black people can hate white people, but you can’t call them racists unless they have power over you, and not just over you but your people, those white people you call your own.”
Livingston also claimed that white supremacists were the ones who called in complaints against him.
What is distressing is that Livingston was saved by free speech but appears willing to deny such protections to others. As for Rutgers, the reversal was not a ringing endorsement of a bright-line protection of free speech as much as a cursory decision to remove any sanction.