Bench Memos

Re: PFAW Opposes Southwick

I see that PFAW still can’t report a case fairly and accurately.  Here’s PFAW’s lead item against Southwick:


In 1998, Southwick joined a ruling in an employment case that upheld the reinstatement, without any punishment whatsoever, of a white state employee who was fired for calling an African American co-worker a “good ole nigger.” The court’s decision effectively ratified a hearing officer’s opinion that the slur was only “somewhat derogatory” and “was in effect calling the individual a ‘teacher’s pet.’” The Mississippi Supreme Court unanimously reversed the decision.


The first sentence is accurate.  The second sentence relies on the weasely phrase “effectively ratified” to obscure the fact that Southwick’s court was reviewing the decision of an en banc administrative body, not the opinion of the individual hearing officer, and that the narrow question that the court addressed (under its “limited scope of review”) was whether the administrative body “erred as a matter of law in holding that [the] evidence was sufficient to support a finding that [the employee] had met her burden of persuasion to show that her remark was not so egregious, either in its intended or its actual effect, that ‘to continue the employee in the assigned position could constitute negligence in regard to the agency’s duties to the public or to other state employees.’”


The third sentence is grossly misleading.  As I explained two weeks ago:

In fact, the majority ruling of the Mississippi supreme court, on appeal, agreed with the lower court that termination was not an appropriate remedy:  “Under the particular circumstances of this case, Bonnie Richmond’s use of a racial slur on a single occasion does not rise to level of creating a hostile work environment, and therefore does not warrant dismissal of her from employment with DHS.”   

The Mississippi supreme court somewhat altered the judgment that Southwick’s court had reached, as it remanded the case to the administrative agency “for the imposition of a lesser penalty, or to make detailed findings on the record why no penalty should be imposed.”  That’s the minor sense in which it’s technically true that there was a unanimous reversal. 


Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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