Racial Slurs
Price of Paradise · Hawaii Public Radio · aired 1998-06-21
Guests: Bill Hoshijo (Executive Director, Hawaii Civil Rights Commission); Jeff Portnoy (attorney)
Duration: 1:08:38

[00:00:03] Randall Roth: Aloha, this is Randy Roth, host of the Price of Paradise radio show. Our goal is to provide intelligent conversations about issues of local interest and to do so in a way that gives listeners an opportunity to participate. We believe such lively and informed dialogue is an important ingredient to a functional democracy and a healthy community. Our sponsor, the Hawaii Community Foundation, is an organization that supports grass root efforts to improve the quality of life in Hawaii and that administers charitable funds with efficiency and compassion.

[00:00:38] Randall Roth: Our topic today is the Civil Rights Commission and we are going to be talking about it, but probably initially we're going to focus on a specific, fairly recent decision from the commission. The decision itself has to do with a fellow by the name of Eric White who attended a University of Hawaii basketball game in 1995 and Rob Wallace, who happens to be the son of UH basketball coach Riley Wallace, but Rob that evening was at the game in the capacity of student manager at the University of Hawaii for the basketball team.

[00:01:16] Randall Roth: This case is interesting and important in its own right and like I say, we are going to be talking about it, but hopefully we're not going to get into legal hair splitting or get into a redeciding or rearguing of the case itself. Hopefully the case will give listeners some indication as to what the Civil Rights Commission is all about and how it goes about doing its job and all of that. So we will get into a broader philosophical discussion involving the Civil Rights Commission, but you'll hear a lot about this particular case involving Eric White and Rob Wallace. My guests in the studio today are Bill Hoshijo and Jeff Portnoy.

[00:02:01] Randall Roth: Bill is the executive director of the Hawaii Civil Rights Commission. In 1988 and 89, he played an active role in support of legislation which established the Civil Rights Commission. Later, in 95, he was appointed to serve as a Civil Rights Commission on the commission itself and then in January of 97 was appointed its executive director. Bill has his bachelor's degree from San Francisco State University and a law degree from the University of California at Davis. He's the co-founder of Naloyo, the lawyers for the people of Hawaii, a nonprofit public interest law firm which he established in 1983. He served as Naloyo's director from its inception through January of 97.

[00:02:51] Randall Roth: From 1984 to 1996, Bill lectured an ethnic studies course at the University of Hawaii entitled Race, Class and the Law. Bill was one of the organizers of the Council on Language, Planning and Policy, which is an organization that seeks to promote inclusiveness, diversity, multiculturalism and multilingualism. That's Bill Hoshijo. Jeff Portnoy, our other guest this morning, has his undergraduate degree from Syracuse University and a law degree from Duke University School of Law. He's been with the Cades, Shutty, Fleming and Wright law firm since 1972. Currently, he's its chairperson in the litigation department and also chairperson of the management committee.

[00:03:39] Randall Roth: Jeff's practice involves media law, employment law, professional errors and omissions, insurance law, product liability law and commercial litigation. He's got a long list of awards that he's won over the years, including the Society of Professional Journalists, First Amendment Award, which he won just a few years ago. Jeff Portnoy, good morning.

[00:04:04] Jeff Portnoy: Good morning, Randy.

[00:04:06] Randall Roth: Bill Hoshijo, good morning to you, too.

[00:04:08] Bill Hoshijo: Good morning, Randy.

[00:04:08] Randall Roth: Bill, why don't you start by telling us real briefly what the Civil Rights Commission is, how it came about and then we'll get into this case involving Rob Wallace and Eric White.

[00:04:20] Bill Hoshijo: Sure, the Hawaii Civil Rights Commission is the state agency that's responsible for enforcing Hawaii's civil rights laws, the laws that prohibit discrimination in employment, housing, public accommodations and state and state funded services. We have five commissioners who rendered the decision in this case, our current chair is Claudio Suya. The commission investigates complaints of violation of civil rights in the areas that we have jurisdiction, and if the investigation produces evidence showing that there's cause to believe that an act of unlawful discrimination has taken place, then those cases would then be docketted for a hearing, basically a mini trial in front of a hearing examiner who makes a recommended decision to the commissioners, who render final decision.

[00:05:20] Randall Roth: Now the commissioners, and there are five of them as you mentioned, is that a full-time job for them, or is this something they do on the side?

[00:05:28] Bill Hoshijo: They're it's a the commissioners are volunteer commissioners, they're not compensated, so they they basically act as an adjudicatory body in cases that come before them.

[00:05:40] Randall Roth: But your position as executive director, that's full-time compensated?

[00:05:44] Bill Hoshijo: Yes, the enforcement staff pretty much is myself, a deputy director, trial attorneys and investigators, we have ten investigators who investigate these complaints.

[00:05:58] Randall Roth: And to give listeners just a sense for some of the the other sorts of things that the commission gets into over and above the case that we're going to focus on in just a bit. There's a decision you and I were talking about just a few minutes before the the show started, involving a woman who was awarded $10,000 because during the course of a job interview, she was asked questions about her marital status and her ancestry. And so it wasn't that information was somehow used against her in deciding whether to hire her or not, but just the mere fact that these questions were asked according to the commission resulted in her being awarded $10,000.

[00:06:38] Bill Hoshijo: Yeah, you're referring to a case involving I I I believe it was Himaden was the complainant, and he was asked questions in an employment interview related to his ancestry, national origin and marital status. Now, the commissioners rendered a decision holding that those were unlawful pre-employment inquiries, and the reasoning behind that is that if an employer cannot consider those factors, or factors like marital status and ancestry in making an employment decision, whether to hire or not, then it's a violation of law to make a pre-employment inquiry into those that relate to those factors.

[00:07:33] Bill Hoshijo: With regard to what it is that the commission does over and beyond this case, I would like to note that the great majority of cases that come before the commission or the largest number of complaints, probably 80% plus of the complaints that are filed with the commission are in the employment area.

[00:07:54] Randall Roth: Okay. And so in the one that I just mentioned, it it was actionable and it resulted in an award that questions like are you married, where are you from, that sort of thing were were asked. Inappropriate questions.

[00:08:06] Bill Hoshijo: Yes.

[00:08:07] Randall Roth: And and another case, which is kind of a segue into the Eric White and Rob Wallace case involved a woman who was referred to or directly called by her boss a blankety-blank howling, the F-word howling, and and also called this gets a little bit awkward but the the B-word howling or a howling B-word which was sexist. And so the commission said the employer had to compensate her for having not used the word howling but used it in conjunction with a very derogatory term that created some sort of hostile work environment.

[00:08:52] Bill Hoshijo: Yeah, in in that case, the commission found that the conduct, the racial attacks on the employee did create a hostile work environment and that pretty much under our employment law, subjecting an employee to those kinds of slurs is a violation.

[00:09:24] Randall Roth: Okay. Jeff Portnoy, I get the impression from your article in this morning's advertiser, page B3, in the focus section, right there next to Bill's, I get the impression that at least with respect to the Eric White, Rob Wallace case, you're in disagreement with the Civil Rights Commission on a legal and philosophical basis. In just a moment, I'm going to ask you to tell us briefly what that case is all about and start our discussion of it, but a few general thoughts about the work of the Civil Rights Commission.

[00:09:56] Jeff Portnoy: Well, there's no doubt that there's discrimination in the state of Hawaii and that government should play a role in ensuring that discrimination is minimized. My problem with Bill and with the Commission is its effort to expand their role to try to take over things in each of our lives that government should really not be part of. There's no doubt that if a governmental official discriminates against someone, there should be a remedy. I don't question the fact that if an employer discriminates against an employee, there should be a remedy and that if a business discriminates against a customer, there should be a remedy.

[00:10:37] Jeff Portnoy: But in the case we're going to talk about and some of the other cases, this Commission has decided to set its own agenda that goes beyond literally what every other similar Commission has found, or the federal government has found. Its involvement should be in our respective lives and this particular case, in my view, demonstrates that as example A as to how this particular Commission has an agenda that it is going to attempt to tell us all how we can act and what we can say in our private lives. And I believe they've become basically a kind of thought police, a kind of conduct police and have gone beyond what they should do in a democracy.

[00:11:18] Jeff Portnoy: Not everything that each one of us says and does may be pleasant or may be acceptable to the person who receives that type of wording or conduct, but it doesn't give the government the right to come in, tell us what we can say and do, and on top of it, award tens of thousands of dollars for someone's hurt feelings. And that's where Bill and I disagree.

[00:11:39] Randall Roth: So you're not necessarily opposed to the concept of a Civil Rights Commission. It's just the way this particular commission is going about doing its work that you have a concern about.

[00:11:50] Jeff Portnoy: Correct, and I think they've done a lot of good things and I think they've rendered opinions that are appropriate when conduct has been in certain situations where the state does have an interest in ensuring that citizens are protected from discriminatory conduct. But it's gone way beyond that in our case and I think in the howling case and some of the other cases, where it simply subjects itself into everyone's lives as to what it believes we should be able to say and do in a democracy and that's just not how a democracy works.

[00:12:21] Randall Roth: Well, hopefully, we're not going to focus just on the Eric White, Rob Wallace case, but let's go ahead and start talking about it. You are the attorney for Rob Wallace in the University of Hawaii. Bill served in what might be described as a prosecutor, prosecutor's role in making the case against your client, Rob Wallace and the University of Hawaii. And again, we're going to avoid trying to re-decide the case or split legal hairs, but let's start talking about this particular case as a, as an illustration of what the Civil Rights Commission is all about.

[00:12:55] Jeff Portnoy: Well, I don't represent the university, I represent Rob for a very good reason. The university's position is that Rob Wallace was acting as a student at the time that he made the comments that the Civil Rights Commission and Mr. White found to be actionable. Rob Wallace was at the university on an athletic scholarship. He was subjected to the same rules and regulations of every other student athlete at the University of Hawaii who's on scholarship, the exact same rules. They're the rules of the NCAA, they're the rules of the University of Hawaii. He received no compensation of any kind for the services he provided.

[00:13:34] Jeff Portnoy: During a basketball game, Mr. White and this is testimony I'm about to tell you that came from all the fans who testified was the most verbally abusive fan anyone had ever heard at any University of Hawaii athletic event, basketball or otherwise. He went after Coach Wallace which I believe he has every right to do, that's part of living in a democracy. Regardless of what he said and he said some pretty horrible things, towards the end of the game, uh, Rob Wallace basically snapped and went after Eric White verbally and used an inappropriate and offensive word that he never should have used, that he recognized shortly thereafter he should not have used.

[00:14:16] Jeff Portnoy: The verbal confrontation lasted less than a minute and was over. Thereafter, Mr. White through private attorneys and through the Civil Rights Commission sought a minimum of $60,000 from Rob Wallace and the University for being called the N-word. His private lawyers dropped out along the way, the Civil Rights Commission pursued the case and they are judge, jury and executioner. They retain a lawyer for Mr. White, the hearing's officer is retained by the Commission, the hearing officer's recommendation goes to the Commission, the Commission makes a decision. Fortunately, you can appeal it and that's where we are now in the courts, where we will get an independent hearing of whether the Commission's decision was correct.

[00:15:00] Jeff Portnoy: The commission found that Rob Wallace was an employee, something that no other state agency in the United States has ever found, that is that a scholarship athlete is an employee. They found that he was an agent in dealing with the public, when all of the evidence was he had no responsibility in dealing with the public, his responsibility was to the team, picking up towels, driving them to practice. They found that he had no free speech rights as a student athlete at the University of Hawaii.

[00:15:31] Jeff Portnoy: And in the way to get around all of the decisions, Randy, that had been found everywhere else, they said, well, so what if he's on an athletic scholarship? He's not an athlete, and basically in one sentence said, he's a student manager and therefore we're not bound by all of the statutes and all of the law that says an athletic scholarship student is not a representative for as an employee or agent, and they awarded $31,000. I think that's wrong.

[00:15:57] Randall Roth: And just so our listeners have a a mental picture, the reason Rob was able to to hear all of this is that Mr. White had positioned himself right behind the bench.

[00:16:08] Jeff Portnoy: Well, yeah, there's a lot of other facts. Mr. White had his own seats, he was a season ticket holder.

[00:16:14] Randall Roth: And without going into much detail, in something you had written that I read, he had positioned himself in in other seats, 8 feet away from the bench.

[00:16:24] Jeff Portnoy: Right, he made sure that he would sit in the first row so that he could directly be in front of the team and Coach Wallace so that he would hear what he had to say during the game.

[00:16:32] Randall Roth: So at least people like me who weren't there have a mental picture as to why it is that that the the words of one fan would be picked up by people on the bench.

[00:16:41] Jeff Portnoy: Right, and he was also quite vocal and quite loud, according to all of the witnesses.

[00:16:45] Randall Roth: Okay. Bill Hoshijo, first of all, are there any statements of fact that you disagree with that Jeff said, and then I want you to add because I'm sure you feel that there's a lot that needs to be added. Is there anything that Jeff said that you would disagree with?

[00:16:57] Bill Hoshijo: You know, I I think that uh, for one thing, this is not a case about government regulating speech or uh restricting free speech rights of anyone. Uh, and the case, I do agree that the case turns on whether uh Rob Wallace was in fact an agent or employee of the uh university, and it would be interesting uh, you know, arguing though if as the commission has decided after a a basically a trial, and uh argument uh, that he is an agent and employee, if so then would this kind of conduct uh, create uh liability for Wallace and the university.

[00:18:25] Bill Hoshijo: Uh, I I think that as we talk about uh the case in particularly because the harm that's uh that was suffered has been characterized as having hurt feelings, I I think we do need to come right out and say that Rob Wallace called Mr. White, yelled at him from the bench, uh he called him a quote nigger twice. Uh, and to put it in context, uh, and I know it's very offensive. I I just don't think we can diminish uh the the conduct or minim

[00:19:00] Jeff Portnoy: as the harm suffered uh because he wasn't called some polite euphemism or an abbreviation of that word. The word has a particular uh impact. And with regard to what Mr. White was saying, uh, he was criticizing the coach. He's a vocal fan. And the facts show that he criticized Coach Wallace saying things like you're a dinosaur coach, you're blowing it, play your bench. Uh, the the arena manager uh heard the comments, but did not feel that they were out of line. Uh at no point did Mr. White use any profanity or racial slurs.

[00:19:42] Jeff Portnoy: Uh, you know, with regard to where he was sitting, uh, that's been raised on on several occasions by the university and uh Rob Wallace as a uh a defensive sword, but I really think it's a red herring because uh for one thing, Uh at that point, as uh as was reported, uh Mr. White being angry uh and embarrassed yelled back, oh yeah, punk, come over and try it. You see me all the time, what's the problem? And uh in response, Mr. Wallace stood up from the bench, moved towards the stands and yelled out, just shut up nigger or I'll kick your ass.

[00:20:47] Jeff Portnoy: Now, uh that that was what that's the the first harm that was committed. Um, the the liability and the the damage in this case really stems from two things. One is this attack and it really isn't speech because it wasn't meant to convey any kind of uh idea. Um, Ms. Mr. Wallace was very forthright in his testimony. He admitted that uh it was the most hurtful thing that he could say. That's why he chose to say it. Uh he knew it was an offensive and racist derogatory term and um that he wouldn't have used that term if uh Mr. White was not an African-American, was not black.

[00:21:44] Randall Roth: Let let me ask Jeff Portnoy. Jeff, uh I think most people, maybe everyone listening, recognizes that this was very offensive, what was said and and Rob Wallace has said he he chose those words in an intent to to hurt in some way, at least the feelings uh of Eric White. Um, what do you say to people who who say, well, Jeff Portnoy is just blowing drawing a a legal distinction in saying, but he didn't do it as the agent of the university or he didn't do it as an employee of the university, and therefore, quote, it was okay?

[00:24:18] Jeff Portnoy: Well, it's not a legal distinction because even Bill would recognize that if those exact words had been said to Eric White by the fan sitting next to him, even this commission could not possibly find an underpinning to fine the fan next to Mr. White who made the stay who made the statement. This whole case, in order for the commission to find in favor of Mr. White, has to be premised on some formal role that Mr. Wallace had as either an employee or an agent of the government.

[00:24:54] Jeff Portnoy: And that's where we disagree and it's not a legal distinction. It has to do with free speech rights. My view is that Mr. Wallace's comments as offensive as he admitted they were and by the way, Mr. White's comments were almost equally offensive based upon the witnesses. But the point is that Mr. Wallace in a democracy, under his free speech rights, has the right to say stupid things. And the government doesn't have the right to put you in jail or fine you or award damages for saying things unless they want to become political thought police and that's what the commission has done in this case.

[00:25:31] Randall Roth: Bill, just so our listeners understand, what Jeff is saying is that the relationship to the university was key here and from reading your piece in the paper this morning, I think it's because if two people just on the street or sitting next to one another in the stands are saying things like that to one another while no one would condone it, it's not something that the Civil Rights Commission would get into.

[00:25:54] Randall Roth: That the Civil Rights Commission gets into it only when it involves a public accommodation, like for example, the arena, or it's in an employer-employee relationship. So it's kind of selected areas, I guess where the Civil Rights Commission comes in and and polices this area. Is that right?

[00:26:13] Jeff Portnoy: Yes, and and in fact, in this case, if uh Rob Wallace had confronted Eric White on the street or uh in any other context other than in the public accommodation while he was acting in a role as an agent or employee, the case wouldn't be before the Civil Rights Commission. The the issue here is unlawful discriminatory conduct uh the exclusion, denial of access, opportunity and in this case, equal opportunity.

[00:26:44] Randall Roth: Equal opportunity to enjoy the arena, the game.

[00:26:48] Jeff Portnoy: Yes.

[00:26:49] Randall Roth: Okay. I got a call yesterday from somebody, a businessman, who said that he has employees who from time to time will file a complaint with the Civil Rights Commission. And he said that thus far, none of the complaints have ever gone anywhere, but in this businessman's words, it's cost him a tremendous amount of money just defending this. His point was really twofold. One is that it's just too easy for people to make these kinds of of complaints and too attractive for them to make these kinds of complaints. $31,000 for being called the N-word, $10,000 for uh uh being asked to question about marital status.

[00:27:32] Randall Roth: I don't know the dollar amount but some dollar amount for being called uh a something, Halley, a fucking Halley was the specific term in in the decision. And he's saying it's just too attractive, too easy, and he said that it's part of what's creating this anti-business climate that is working to the disadvantage of the economy. How do you respond to to a critic like that?

[00:27:57] Jeff Portnoy: Well, I I think you're really talking about two things. One is uh it in the the cases that you mentioned, these are cases where there's been a finding that uh there's cause to believe that an an unlawful act of discrimination has occurred. Uh in the the callers with regard to the caller's concerns, uh that really goes to the uh the ease uh or accessibility of the commission as a forum for filing complaints of discrimination. And uh the like as I was saying, we have jurisdiction uh enforcement jurisdiction over uh our civil rights laws in employment, housing, public accommodations, and we're mandated to accept complaints.

[00:28:47] Jeff Portnoy: We do investigate the complaints and our determinations are based on whatever evidence is produced as a result of the investigation. Uh if well, both on a federal level and at a state level, uh Congress and our legislature have made a determination that uh discriminatory conduct should be prohibited. Eric White had been uh invited to sit in at least one of the seats by a fellow booster. He was a uh a long-time member of the Rainbow Booster Club, an avid fan. The only way that we can uh enforce that policy is by accepting and investigating complaints.

[00:29:20] Jeff Portnoy: One one of the things that we are trying to do at the commission is uh to do a better job in terms of uh weeding out the weak cases, the no cause cases earlier in the process because it doesn't do anyone any good to have complaints sitting uh with and we do have a big case uh inventory or backlog. Um and the the thing is that uh 90% of the complaints filed with us do result uh those that go to a determination do result in no cause findings.

[00:29:58] Jeff Portnoy: Uh I think every complainant has uh the right to have their complaints investigated to see if they have merit and uh respondents have have the right to uh have these complaints fairly investigated. And I think the the result show that we're making the determinations based on the evidence because uh you know, if you look at it uh in terms of how the cases are resolved, the majority of the cases are no cause cases. Uh and it wasn't the reason that he was subject where he was sitting had nothing to do with the attack on him. We do pursue the cases where we find evidence that there's been unlawful discrimination.

[00:30:32] Randall Roth: Okay, and I know Jeff Portnoy has something to say, but I'm way late in telling people who tuned in late that they're listening to the price of Paradise Radio show. My name is Randy Latrell and we are investigating the commission.

[00:31:25] Jeff Portnoy: Uh if he was sitting in the wrong seat, the it's a racial attack is not the appropriate corrective action for uh to to remedy that. Uh, and I wouldn't think that any fan sitting at at the game who moves down from the nosebleed seats or from any seat to a better seat, to an empty seat, uh, should be subjected to a racial attack. Uh and with regard to the facts, um pretty much what happened was uh Mr. White was verbally criticizing the coach with those uh quotes that I that I had mentioned and uh oh, excuse me.

[00:36:14] Randall Roth: Well, I was going to ask you a a question as I understand it. Uh, later that day, Rob Wallace Rob Wallace apologized um to Eric White, as you indicated in your article. Rob Wallace has has felt very badly and and has been embarrassed by this and has been very cooperative with the commission in telling you exactly what happened and why he did what he did. And again, he apologized that night. Um, is that relevant?

[00:38:00] Jeff Portnoy: Uh can I uh start just by saying what exactly was said? Uh in response to the uh Mr. White's uh cheering and criticism, uh Rob Wallace turned from the bench and told him quote, and I I know I can't use obscenities on the radio, uh quote, shut up you f and n nigger. I'm tired of hearing your crap. Shut your mouth or I'll kick your ass. Well I you know if if I may, I really have to object to some of the characterizations about Mr. White, because you know, in in the overall scheme of things, Mr. White did nothing wrong, nothing to deserve the kind of racial attack that he suffered.

[00:38:16] Randall Roth: Okay. Well, I think we've we've touched a a couple of nerves out there. We got a number of people on the line wanting to ask a question or make a comment. We'll start with Ray in Kani Ohe. Good morning, Ray. Ray, are you there?

[00:38:29] Caller: I'm here. Can you hear me?

[00:38:30] Randall Roth: Yes, I can. Go ahead.

[00:38:32] Caller: I I uh I think we've gone over the top and hit bottom again. Uh this is a community of uh uh multiracial multiethnic backgrounds. and there are always going to be some problems here and there. And certainly my children who have grown up here born and raised Kiki Okaina. Uh actually one of them's Korean. And uh and those children of uh both the two gentlemen on the air, uh have uh they have to run the same sort of thing at the schools and and and their life is is always going to be under something. As we go through this process, I'm trying to figure out, can we hold the uh Department of Education uh responsible through the Civil Rights Commission when there is a Kill Howly or slap a Jap day. And and they happen every spring at every public school. I I'd like a comment on that. Uh how much can we take out of the Department of Education.

[00:39:26] Randall Roth: Okay. Bill Hoshijo, executive director of the Civil Rights Commission.

[00:39:30] Bill Hoshijo: Uh let's see. The in terms of our jurisdiction, uh one of the uh positions that the commission has taken in the past is that the commission does not exercise jurisdiction over our public schools and that uh complaints of discrimination in uh education would be uh under the jurisdiction of the federal Department of Education office of Civil Civil Rights.

[00:40:03] Randall Roth: Well, the the thing is that in this case, the uh the complaint was filed regarding uh discrimination in the sports arena, which falls under the uh definition of a public accommodation.

[00:40:21] Bill Hoshijo: And a public school is not a public accommodation?

[00:40:24] Randall Roth: That as a matter of policy, Well, then I'm going to file it. I believe it must be in a public accommodation. In fact, our children are forced to go there.

[00:40:34] Bill Hoshijo: Well, it's uh I can use the money.

[00:40:37] Randall Roth: Hey, Ray, as a taxpayer, quit it.

[00:40:41] Bill Hoshijo: Well, no, no, but that's that's part of the point about who's paying for these decisions by the Civil Rights Commission, and I think that's very important. And again, nobody condones what happened here and the language that was used, but it's you and I that that are paying, assuming this decision is upheld, for the $31,000 given to Mr. White because his feelings were hurt. It's you and I who paid for the other types of cases that are public accommodations. Yes, in certain types of employment situations, it's not directly you and I, but we're paying for the insurance premiums and we're paying for the cost of the products. But in many cases, Randy, I don't disagree with Bill. In many cases, those fines are appropriate, but the caller has raised a fascinating issue. How much is government going to interfere with what goes on? They have never taken up a case of a student who's offended by language or a Kill Howly day or whatever in schools because you have to draw the line somewhere. My position is where they're drawing the line is not appropriate.

[00:41:45] Randall Roth: Well, actually, let Bill say one more thing and then Ray we'll let you cap this and we'll move on.

[00:41:49] Bill Hoshijo: Bill. Yeah, you know, I I am interested in uh the whole issue of whether we uh the Civil Rights Commission should exercise jurisdiction over discrimination in the public schools. I know Civil Rights commissions in other states, including California, do exercise jurisdiction over the public schools. In Hawaii, there has been uh a policy determination that the Civil Rights Commission does not exercise uh jurisdiction over the public schools. I I just like to respond to one of the things that uh that Jeff said about uh expansion of uh civil rights jurisdiction into the area of public accommodations.

[00:42:33] Bill Hoshijo: A generation ago, 40 years ago, clearly, this kind of conduct would not have been unlawful, uh although arguably might be a violation of the equal protection clause in in the Constitution. Uh and in fact, this kind of discrimination was accepted and codified in much of the country of of the United States in the form of Jim Crow laws, but we've really moved beyond that. And I don't think any customer in a place of public accommodation uh should be subjected to this kind of racial attack, and we've moved beyond it. I think we're better for it, and uh that we're all better off for it.

[00:43:14] Randall Roth: Uh Ray from Kani Ohe. I'll let you have the last word and then we'll move on.

[00:43:18] Caller: Well, I just as I I suggested, we've gone over the top and we've hit bottom. But I would imagine that one of the things that bothers me and many other people is that uh we're paying an attorney here who already Fortnoy makes too much money anyway. So, as a taxpayer, and the money's coming in from the university, I guess. Uh boy, I object to seeing Fortnoy make more money. And so if you know, I, Bill, can I get to uh can I sue somebody because I have this attitude about Jeff?

[00:43:47] Randall Roth: Ray, Ray, thanks for your call. And Jeff, Jeff would love to say something, right?

[00:43:53] Bill Hoshijo: No, I just want to say something. No, that's all I need. Uh the university is not paying my fees. The taxpayers are not paying my fees. I've been privately retained.

[00:44:01] Randall Roth: Okay. Let's go to Francis in Copole. Good morning, Francis.

[00:44:04] Caller: Yeah. Thanks for answering. Uh I I think that uh the plaintiff and the uh defendant and the commission has to add a little wholesomeness and understanding to their uh thinking. Otherwise, uh these social situations are going to really uh further sadden things and depress us all. And there's something broader than uh for instance, uh I've been a ethnic uh Caucasian uh for some time and and in some settings, I could have been awfully upset, but I have to have a little broader thinking. So, uh these none of us want to come down on an individual's rights, their feelings, etc., but a little wholesomeness as I mentioned and understanding has to be uh added to this whole situation.

[00:44:51] Randall Roth: Okay. Jeff Fortnoy will comment on that.

[00:44:53] Jeff Portnoy: And that's a very good comment because just let me give you 2 minutes about what happened after this incident. Mr. White was very upset and rightfully so, and he made a complaint, and uh someone came out and brought Mr. White into a room where he met with Rob Wallace and and and Coach Wallace and Mrs. Wallace. And after about a half hour conversation, Mr. White and Rob Wallace actually hugged each other, after Rob Wallace apologized for using this term, said he didn't know why he did it, he lost it. He was sorry, Mr. White apologized for the things that he had said. They hugged, and that's the way these things should be resolved, but within two or three days, days Mr. White after talking to lawyers and others decided that there was money to be gained from this, and that's what led to where we are.

[00:45:45] Bill Hoshijo: And that private room scene doesn't get into the media for balance. And uh I I overstep my bound sometimes, but then I have to have enough sense to apologize and think a little broader about things. So, uh I still think it's applicable to the Commission, the defense and the plaintiff to think a little broader.

[00:46:05] Randall Roth: Thank you, Francis. Quick comment from Bill Hoshijo and then we'll move on.

[00:46:08] Bill Hoshijo: Yeah. You know, one of the things that we we really need to consider is that after this happened, uh Eric White was very much hurt and embarrassed and uh he was really trying to understand why he was singled out for for this racial attack. Uh he attempted to file a complaint with the the arena officials, and he was told that they weren't they wouldn't do anything about it, and if he wanted to uh pursue a complaint that he should call the police department. Uh in fact, he did go outside and was making a call to the police department when uh someone close to the basketball program came out, another African American uh uh person and uh asked him about what happened, and uh it was only after that that he was the meeting was set up and Mr. White was put in a room with uh with Coach Wallace and Rob Wallace and uh he really wanted to find out what motivated the attack, and uh pretty much Coach Wallace uh did all of the talking. Uh there was no one there from the university uh from the athletic department other than the uh other than Rob Wallace and his father. Um and really the the majority of the damages suffered in this case and the commission found uh stem from the failure of the university to take corrective action, and we have really never seen uh appropriate corrective action in this case.

[00:48:00] Randall Roth: But Bill, if if the reason you have jurisdiction is that Rob Wallace was an agent of in in your opinion and that was the decision of the Commission, he was an agent of the university when he said the bad things, wasn't he an agent of the university when he apologized later that same day?

[00:48:18] Bill Hoshijo: Well, you know, the in terms of uh appropriate action and investigation of a complaint, and keep in mind that the university uh at that point had still refused to accept the complaint. And in fact, never really accepted a complaint regarding the discriminatory conduct uh that uh um it's it's not appropriate to put the uh uh the person who suffered the racial attack in the room with the harasser. I mean, in an employment context, that would be clearly an inappropriate way to address uh the problem.

[00:48:55] Randall Roth: Okay. I think our last caller would say that's the right way to approach it, is to sit down without the lawyers and just talk, but from your point of view at least, there was some sort of response that should have been coming from the university. Yes. Okay. Um I know that a lot of people know the facts already, but we have people who tune in late for this show. Very, very quickly, our topic is the Civil Rights Commission, but we're talking about a specific decision from the Commission. It involved uh something that happened during a 1995 basketball game against Utah. Eric White, an African American, was seated behind the bench. He was very vocal, very critical of Coach Riley Wallace. Late in the game, Riley Wallace's son, who was serving as team manager at the university on an athletic scholarship, turned around and yelled a number of things at at Mr. White including the N-word. Uh later, Rob Wallace apologized to Mr. White and since then, Rob Wallace has been very cooperative with the commission and feels very badly about what happened, but the fact of the matter is that it did happen. Uh as you just heard Bill Hoshijo indicate, Mr. White complained to the arena, but the arena didn't really accept the complaint or act on it at least directly. Later it came to the attention of the athletic director at the university and he suspended Rob Wallace from his position as team manager. Uh Mr. White then complained to the Civil Rights Commission, who eventually awarded him $31,000. Um Bill would uh would say that that this $31,000 was an appropriate award because Mr. White's uh right to full enjoyment of a public accommodation was somehow uh denied him. Uh Jeff Fortnoy on the other hand who represents um Rob Wallace says that this decision is is legally and philosophically wrong. Well again, with that uh you know, information for those of you who have tuned in late, we're down the last 15 minutes. We've got four people who have been waiting very patiently on our lines, and we're going to get to all of them. Let's go to Carolyn in Makakilo. Good morning, Carolyn.

[00:51:03] Caller: Good morning, and I really appreciate the opportunity to hear this type of a exchange. The thing I have been thinking about is that um this whole thing issue is more than just feelings being hurt. When racial slurs are being used by an by an employee of the state, which, you know, I'm a taxpayer, we're all sitting here as taxpayers, he represents us. And I don't think apparently, in this case, there wasn't any enough training done to someone who sits that close to the spectators and in that position of power. And I think that's the other thing that we need to real realize here is that Mr. Wallace did have a position of power. Uh he is uh a student manager and he represented the university and I would not, I'm a I'm a university student, I'm a grad student. I wouldn't want anyone representing my university that would lower themselves to use racial slurs and we have to go back to this power. Racial slurs are part of the power struggle in this country, Okay. And it's those who have the power who use them against those who don't. And when you use a racial slur, you're bringing back the history of all racial slurs when we put oppressed people in positions where they have to take it. Okay. And and uh someone who's sitting in in the audience paying money shouldn't have to, you know, shouldn't have to be uh exposed to that.

[00:52:43] Randall Roth: Okay. Carolyn, thank you very much. We appreciate your comment. So that we can get everyone who's been waiting patiently, I'm going to try to to go to them and uh if Jeff and and Bill have uh a great urge to say something, they can grab me and start uh responding. But otherwise, we're going to try to get to all our callers. Suzie from Hawaii Kai, you're next.

[00:53:05] Caller: If someone goes to the state employment office in downtown Honolulu on Punchbowl Street looking for a job, one of the questions on the preliminary application form, the applicant is asked to write down date of birth. Is that legal?

[00:53:21] Bill Hoshijo: Okay. This is Bill Hoshijo. There's uh there are really two parts to this answer. Uh first, uh discrimination on on the basis of age and employment is unlawful. Now, uh our jurisdiction is qualified in our statute, though. Um But but let's assume you have jurisdiction because I think most non-lawyers just want to know whether this is something that that the commission would find as actionable and in a form of discrimination, assuming it has jurisdiction. It it would be uh an unlawful preemployment inquiry in most contexts. Um However, our our law does provide that uh nothing in our statute will uh prohibit uh practices that are uh or won't affect any other law regulation uh ordinance, legal requirement. And uh it's my understanding that the Department of Labor has federal requirements uh that require them taking certain information uh with regard to employment, their employment program.

[00:54:36] Randall Roth: But in the meantime, the non-lawyers of the world are out there saying, what can I ask and what can I not ask? It's it's kind of confusing.

[00:54:43] Jeff Portnoy: It's very confusing because there are many things that you are prohibited from asking that employers believe are necessary in determining whether someone can fit the job. For example, you're not permitted to ask someone whether they're married. You're not permitted to ask someone whether they have children. There are many jobs which are not 8 hour day jobs which require people to be on call. Employers will tell you that they believe it's a what's called a bona fide occupational qualification to know about person's availabilities. Our Civil Rights Commission has made it impossible for the average employer to figure out, can I ask this question? And if I ask this question, are they going to find me $20,000.

[00:55:27] Bill Hoshijo: You know, with regard to that particular issue, the the appropriate question for an employer to ask is, the the job requires uh work beyond the eight hours a day and on on call uh duties, would you be available, and really go to the heart of the the issue because the whether a person is married or has children isn't determinative of whether the person can perform the job.

[00:55:56] Caller: And I I'm not sure I've had an answer. I'm not asking as an employer. I'm asking as a job seeker. Do I have to write down my date of birth? Is that legal?

[00:56:07] Bill Hoshijo: It's it's my understanding that the uh Department of Labor is required to to take that information. Now, if uh a complaint were filed with the commission, we would uh investigate the complaint, my uh and and see whether there is in fact uh a legal justification for the inquiry.

[00:56:28] Randall Roth: Sounds like the lawyers are really trying to make work for themselves, doesn't it? And we wonder Well, it's it's the legislature that made the laws in Congress, but you know, we have become a very litigious society. We've become a society that has an abundance of laws and and Bill, I assume you would agree that when the executive director of the Civil Rights Commission doesn't know something off the top of his head that that is so common like asking for, you know, birth date, um that it it makes us wonder whether the law hasn't gotten more complicated than it needs.

[00:57:00] Jeff Portnoy: I don't think uh I don't think I would disagree because

[00:57:03] Randall Roth: I don't feel there's any point to the law against age discrimination if I have to write down my date of birth. It's it's all a fiction.

[00:57:09] Jeff Portnoy: Well, an employer uh cannot make an employment determination based on

[00:57:15] Randall Roth: I'm not talking about the employer, I'm talking about the state.

[00:57:18] Jeff Portnoy: Yeah, and and there it really has to do with uh what the basis for the uh employment offices inquiry is. If it's based on a federal law requirement, then uh it wouldn't be a violation of of our law.

[00:57:35] Randall Roth: Okay. Um, we need to move on. We go to John from Honolulu. Good morning, John.

[00:57:39] Caller: Yeah, good morning. Uh, what's the constitutional basis for the judicial authority of of the commission? As far as I can make out, they're all volunteers and they seem to be nothing more than a vigilante, uh, well-motivated vigilante group, but a vigilante group, or a kangaroo court. I'd like to know what the legal authority for base for their authority is.

[00:57:58] Bill Hoshijo: Uh, Bill Hoshijo. Uh, the the commission was established by by statute to enforce our civil rights laws. So, uh, it's it's right in our state law. The state Constitution also prohibits discrimination uh based on race among other protected bases. So, uh, it

[00:58:20] Caller: That's not what I'm questioning. I'm questioning it is is how did how do these people get judicial power? They aren't officers, are they officers of the court?

[00:58:27] Bill Hoshijo: It's Are they officers of the court?

[00:58:29] Caller: It It is an administrative adjudicatory body, much in the same way that the parole authority and other boards and commissions uh exercise statutory authority. So, uh, the commissioners are appointed uh by the governor with the advice and consent of the of the Senate, and they are uh a citizen panel that's empowered to uh to sit in adjudication of these complaints. I'm I'm questioning that constitutional authority, Jeff Portnoy would like to comment on that.

[00:59:02] Jeff Portnoy: John, are are you getting into just the whole separation of powers and the fact that this isn't part of the judiciary?

[00:59:08] Caller: Yes.

[00:59:09] Jeff Portnoy: Okay. I we have to move on. Jeff, I'm going to give you a few seconds to comment, then we have to move on.

[00:59:14] Jeff Portnoy: John raised some good questions. It is true. The legislature has empowered the commission to do what it does. Fortunately, the courts are the final arbiter of these and other issues. They're expensive. It's unfortunate that that's how this society is, but the University and Rob Wallace now get to appeal this decision, and they judge, and ultimately maybe the State Supreme Court, John, will decide these issues, and that's where it should be because you're right, it is a kangaroo court when the lawyer is employed by the Commission, the hearings officer is employed by the Commission, and the Commission makes the final decision. We move to Sean from Waipahu. Good morning, Sean.

[00:59:48] Caller: Good morning. Um I just want to say I mean, I'm not condoning what the coach's son said to that that person. I mean, it was a bad it was a bad thing to say, but I'm going to say that, you know, that that person that had that thing said to him was not an innocent victim. He opened himself up to those attacks when he decided to you know, disrespect, you know, his um you know, the father the coach, um he decided to, you know, he took it upon himself to go go ahead and disrespect in him. And of course, when you're in a game and stuff like that, of course, um you know, the adrenaline, you know, you know, rushes high and stuff like that. Um maybe the coach's son should apologize or whatever, maybe, you know, um you know, try to make this thing right, but to have it go to the civil rights commission, um you know, they're wasting the taxpayer's money doing it. And by the way, the Civil Rights Commission over here in Hawaii, I I can't speak for the other ones back on the mainland, but it seems to be a witch hunt, like a McCarthyite type of thing and it it just really really scares me. Um, I I hope that Mr. Hoshijo can can assure me uh that this is not true.

[01:00:49] Caller: Thank you very much.

[01:00:50] Jeff Portnoy: Sean, we'll we'll take your comment as a comment as opposed to a question, and we've got one

[01:00:54] Bill Hoshijo: And I can assure him that that's.

[01:00:56] Jeff Portnoy: Okay, we've got one more person who's been waiting real patiently. Anyone else who wants to participate, I'm sorry but it's just too late. We've had um too many things uh that we've we've needed to cover. Dick from Honolulu, you've got uh just a bit to make your point.

[01:01:09] Caller: Morning, Randy. Some of us may have been offended by Jeff's performance at the Manoa Valley Theater last night. Can we sue the theater? Uh more seriously, in the in the law of of liability, there's a concept called contributory negligence. Does one person's actions affect the result because of what he contributes?

[01:01:32] Jeff Portnoy: I tell you what, that's a a legal question and we just don't have time to to get into that. Dick, can I just take that as a comment? Sure. Um, because there are a lot of legal dimensions to this thing, but you've each got one minute left to either add what needs to be added or to uh to restate what really needs to be emphasized. Let's start with Jeff Portnoy.

[01:01:54] Jeff Portnoy: There is no excuse for the terminology used by Rob Wallace, but in a free society, people are entitled to make comments to other people that they may find offensive. The response is to respond verbally. He or Mr. White began his verbal offensive, and Mr. Wallace responded. What the commission says is Mr. White's position and the words he used were okay. Mr. Wallace's position and the words he used, in the in the belief of five commissioners, was not, and they award $30,000. The point of the matter is that in a democracy, words do not kill. Words can be offensive and words uttered by a student to another person should not subject the university to a $30,000 penalty and those dollars go into the pocket of Mr. White. It is the situation in which political correctness should not be enforced by the government. Debate in a democracy should permit the use of words which certain people may find offensive. This is not the situation where a government employee has discriminated against someone or even an employer against an employee. It is a single isolated comment for which Rob Wallace offered to apologize. The courts will make the ultimate decision.

[01:03:17] Bill Hoshijo: Bill Hoshijo, one minute. Okay, uh this case is not about speech in the First Amendment. Um the first Amendment does not protect all speech. The courts have consistently held that sexually or racially harassing speech is not protected if it creates a hostile or offensive uh work environment. And here, just as in the work context, in a place of public accommodation, the use of the racial slur uh denied the uh Mr. White equal enjoyment of the place of public accommodation. It was meant not to convey an idea, but uh to exclude, to diminish, uh to hurt, and that's what it did. It put him in his place and uh that's that's the uh the harm.

[01:04:04] Jeff Portnoy: Thank you very much. Our producer Susie Roth, Jeff Alardi is technical wizard. Thanks for listening.