Nebraska Tries to Remove Racist Trooper

The intersection between freedom of association and government employment can be tricky to navigate. A teacher can’t be fired for exercising her right to support the NAACP, but what if the teacher joins a cult that advocates the sexual enslavement of children? The Constitution protects the right to associate with others for the “vigorous advocacy” of “lawful ends” (NAACP v. Button), but it doesn’t protect membership in a criminal conspiracy.

Standing between these extremes is Robert Henderson, who lost his job as a state trooper when the State of Nebraska discovered his membership in a white supremacist organization: the Knight’s Party, an offshoot of the KKK.

The Web site's sponsor, the Knights Party of Harrison, Ark., is run by Thomas Robb. [Arbitrator] Caffera described the Knights Party as an attempt to "cloak the 'friendlier face' of the Knights Party from its ultimate corporate parent, Robb's faction of the KKK."

This “friendlier” version of the KKK may or may not advocate unlawful behavior, but white supremacy presupposes the suppression of equal rights for nonwhites. Since police officers are sworn to uphold the law (including the Constitution), it’s easy to understand Nebraska’s concern that Henderson’s interest in subverting civil rights renders him unfit for his job.

Henderson convinced an arbitrator to order his reinstatement. This is a tough call because Nebraska does not claim that Henderson’s 18 year employment history is marred by racist behavior. If Henderson has effectively cabined his offensive beliefs and treats every person he encounters with equal respect, he shouldn’t easily lose his job. Nebraska’s Attorney General, Jon Bruning, nonetheless had a legitimate point to make in filing suit to overturn the arbitrator’s ruling: “The state of Nebraska has no interest in allowing an avowed racist to be a member of the State Patrol.”

The case is awaiting a decision. It would be helpful to know more about Henderson’s participation in the Knight’s Party. Freedom of association is strongest when people band together to engage in political advocacy or expression. The Constitution does not protect the violent tactics that characterize the KKK. Did Henderson limit his activities to message board posting? If so, did he use his postings to encourage others to harass and intimidate members of a targeted race or religion?

Henderson posted to a private section of the website. The content of those postings should be crucial to deciding whether Henderson crossed the protected line of political debate or advocacy, but the content isn’t reported in the linked articles. If anyone has that information, please pass it along.

Nebraska may have made procedural errors that will require the affirmance of the arbitrator’s decision, whether or not the arbitrator’s take on the constitutional question is upheld. If it’s true that Henderson has hidden his obnoxious belief system and has done his job well for 18 years, it’s fair that he keep his job. It might also be fair to reassign a racist to a job with limited public interaction, despite Brunig’s understandable assessment that "Cleaning the toilets would be too good for him.”

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    Nebraska's Klansman Trooper (none / 0) (#1)
    by DeWitt776 on Wed Oct 25, 2006 at 05:11:18 AM EST
    Mr Henderson does not have a constitutional right to be a Nebraska state trooper, a person entrusted by the rest of us to protect the public safety. The Ku Klux Klan is a terrorist organization. It may be as "American as cherry pie", but its avowed objectives are repugnant to our constitutional order. How can this guy uphold the law when he is a self-professed advocate of the overthrow of the legal order that protects minority rights?

    He is entitled to his views. He should not be prosecuted for those views unless he acts on them -- regrettably, far too many of his fellow Klansmen escaped justice (not so coincidentally, because the guardians of public safety were heavily infiltrated and influenced by the Klan). He is not entitled to a livelihood at taxpayer expense.

    Would we be having this discussion if Henderson had been a member of an organization that was "cloaking with a friendly face" its sponsor, al-Qaeda?


    The right to continued employment (none / 0) (#3)
    by Gabriel Malor on Wed Oct 25, 2006 at 10:41:55 AM EST
    While true that Henderson has no constitutional right to state employment, he does have a property right in his continued employment.

    Property rights are protected under the Due Process clause of the 5th (applied to federal) and 14th (applied to states) Amendments. That's why the court is concerned about "procedural errors" in Henderson's suspension. They can get rid of him (and they probably should, maybe even if he's never done anything illegal at his job), but they have to give him due process.


    Gotta be Free (none / 0) (#2)
    by kdog on Wed Oct 25, 2006 at 08:19:29 AM EST
    This is dicey.  Freedom of association is absolutly critical in a free society, and we have the right to hold repugnant opinions.

    I despise klansmen cops as much as the next guy, but I think it must be proven that he discriminated against minorities on the job, or  of other wrongdoing, before you sh*tcan the guy.

    Classic slippery slope.  Fire him for being a klansmen, fire the next guy for being in the ACLU or NORML.

    Uh.... (none / 0) (#4)
    by Punchy on Wed Oct 25, 2006 at 11:01:58 AM EST
    ...ok, he's reinstated.  And I'm quite sure, being that it's NE, that there probably aren't a lot of minority cops.  But the few that are there...how are they supposed to work with this man?

    Shorter--it's my guess that nobody on the force wants him back, so what's this do to morale when he needs a partner?