If one employee can’t get along with others, it creates two problems. The first is an unhappy workplace, where the employee who is deemed the cause of the problem makes other employees unhappy, maybe even miserable. While the assertion that happy employees are productive employees may not be quite as accurate as some believe, miserable employees can be both unproductive and a time-consuming source of needless drama and angst.

The second problem is that it places the views of some in the hands of other employees. What if the source of their unpleasantness is that a minority of employees, maybe even just one, holds a different view on a substantive issue than other employees, and the others find the one employee’s view intolerable for no other reason than they disagree? What if it was a public employer where the employee had First Amendment rights? What if the employer was an academic institution where the employee was afforded academic freedom to express views related to academic issues? What if this view was that diversity wasn’t all it was said to be?

A federal appeals court ruled yesterday that it was OK for North Carolina State University to punish a professor for “uncollegiality” after he criticized a “diversity” question on student evaluations, and a diversity-oriented faculty search, and wrote a blog post about the increasingly “woke” nature of his field.

It’s one thing to fight against requiring a “diversity” litmus test for new hires or promotions, although it’s a battle fought mostly in the breach as the belief that diversity should be primary to all academic disciplines. It’s another to refuse to tolerate an academic colleague who questions the efficacy and validity of diversity.

In a 2-1 decision, the Fourth Circuit in Porter v. Board of Trustees of North Carolina State University engaged in some curious gymnastics to circumvent the hard issues of free speech and academic freedom in order to conclude that Porter just wasn’t very collegial with his co-workers and that was good enough reason to put him in the academic doghouse. In other words, Porter’s offense wasn’t being antagonistic toward diversity, but not playing nice with his co-workers, which meant holding a view that they found anathema such that they didn’t want to play with him anymore.

What that means, obviously, is that anyone holding a view that differs from his co-workers does so at his peril lest he be deemed a pariah who can’t get along with others.

But then, what about a prof who holds a view that, say, black people aren’t smart enough to succeed in law school (a la Penn prawf Amy Wax)? Are their views so offensive or outrageous that free speech and academic freedom aside, they are so far beyond the pale that the lack of collegiality is sufficiently severe that it can’t be ignored, and can serve as a cause for dismissal or punishment?

Even if Professor Porter’s speech were somehow unprotected (which it isn’t), the naked viewpoint discrimination against him by the university raises eyebrows. The “uncollegiality” excuse is obviously a mask for viewpoint discrimination, given that university employees routinely are a thousand times more uncivil or uncollegial than Professor Porter, without receiving any discipline at all. For example, a professor’s article in a campus publication yearning for the death of the college president was ruled protected by the First Amendment in Bauer v. Sampson (2001). The Ninth Circuit Court of Appeals ruled that could not be punished under the college’s policy against “workplace violence.” Criticism of college officials is protected speech, unless it contains “overt threats,” according to the Eleventh Circuit Court of Appeals’ ruling in Barnes v. Zaccari (2012).

Is there a line beyond which holding a view that co-workers find so reprehensible that they will no longer work with a person and which justifies acting upon it? Does it matter that it’s protected speech if the contention is that it’s not the speech, but the disruption of the workplace because of lack of collegiality? If the view that diversity is malarkey crosses the line, what of the view that white people should be castrated or Asians should be denied entry into Harvard or Thomas Jefferson High?

Collegiality seems to be a good thing when it comes to creating a happy, cohesive workplace, but is it more important than the protection of diverse views even if that means a cohort of really angry employees who hate each other and refuse to work together?

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