The Volokh Conspiracy

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Free Speech

University Official Fired for Discriminating Against Police Chief Who Voted for Trump

The official was the Vice President for Student Affairs and Diversity at the University of North Dakota.


The Dickinson Press (Adam Kurtz) reported in September, and The College Fix (Christian Schneider) just publicized it yesterday:

University of North Dakota President Andrew Armacost has fired one of the two administrators former UND Police Chief Eric Plummer claimed discriminated against him on the basis of his political beliefs….

Plummer left his job in February shortly after filing complaints against Halgren and Gerhardt for discrimination and creating a hostile working environment over a period of four years, dating back to a conversation he had with Halgren in 2016.

That conversation, Plummer said, took place at the Northside Cafe. There, Halgren asked him who he voted for in the 2016 presidential election. According to the complaint, Plummer said the question made him feel uncomfortable, but he answered that he voted for former President Donald Trump.

After that, Plumber said Halgren and Gerhardt's behavior toward him changed. In the complaint, Plummer said Halgren canceled regularly scheduled breakfast meetings with him, which he said damaged his relationship with UND student affairs. Their professional relationship continued to get worse, and Plummer said he was left out of an online meeting moderated by Gerhardt, and had to work in an increasingly confrontational environment.

In August, an administrative law judge dealing with the complaints found that Halgren discriminated against Plummer on the basis of his political beliefs. The same judge, Hope Hogan, found that Gerhardt did not harass Plummer or create a hostile working environment against him.

You can see a copy of Administrative Law Judge Hope Hogan's findings.

The First Amendment generally bars the firing of government employees for their political affiliation, which would include voting. There is an exception for certain positions for which political affiliation is seen as a legitimate criterion—think chiefs of staff for elected officials, or cabinet officers or their top deputies—but I doubt that it would apply to a police chief at a university.

North Dakota actually makes it a crime ("interference with elections") to "by economic coercion" "[i]njure[], intimidate[], or interfere[] with another because the other individual is or has been voting for any candidate or issue." That would apply, I think, to firing someone based on how he voted; query whether it applies to discrimination in assignment of job duties and opportunities within the organization. (Nearly all states have some statutes protecting employees against a considerable range of private and public employer retaliation based on voting.)

North Dakota state law also bars all employers, government or otherwise, from firing employees based on off-duty off-working-hours "lawful activity," which would include voting (and other political activity):

[No employer may discriminate against an employee or applicant] because of … participation in a lawful activity that is off the employer's premises and that takes place during nonworking hours

[a] [unless that participation is] in direct conflict with the essential business-related  interests of the employer … [or]

[b] contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee or group of employees, rather than to all employees of that employer.