State v. Henderson

State of NebraSka aNd the NebraSka State Patrol ,
aPPelleeS, v. robert heNderSoN aNd the State law
eNforcemeNt bargaiNiNg couNcil , aPPellaNtS.
762 N.W.2d 1
Filed February 27, 2009. 	No. S-07-010.
1. Arbitration and Award: Appeal and Error. In reviewing a district court’s deci-
sion to vacate, modify, or confirm an arbitration award under Nebraska’s Uniform
Arbitration Act, an appellate court is obligated to reach a conclusion independent
of the trial court’s ruling as to questions of law. However, the trial court’s factual
findings will not be set aside on appeal unless clearly erroneous.
2. Arbitration and Award: Contracts. Arbitration is not a judicial proceeding; it is
purely a matter of contract.
3. Arbitration and Award: Federal Acts: Contracts. Arbitration in Nebraska is
governed by the Federal Arbitration Act if it arises from a contract involving inter-
state commerce; otherwise, it is governed by Nebraska’s Uniform Arbitration Act.
4. Arbitration and Award: Contracts: Appeal and Error. Courts do not sit to
hear claims of factual or legal error by an arbitrator as an appellate court does
in reviewing decisions of lower courts. A court may not overrule an arbitrator’s
decision simply because the court believes that its own interpretation of the con-
tract, or the facts, would be the better one.
5. Arbitration and Award: Public Policy. A court may refuse to enforce an arbitra-
tion award that is contrary to a public policy that is explicit, well defined, and
dominant. Such a public policy must be ascertained by reference to laws and
legal precedents, not from general considerations of supposed public interests,
but the arbitration award need not itself violate positive law to be unenforceable
as against public policy.
6. Public Policy: Discrimination. It is an explicit, well-defined, and dominant pub-
lic policy of the State of Nebraska that the laws of Nebraska should be enforced
without racial or religious discrimination.
7. Public Policy: Public Officers and Employees: Discrimination. Nebraska
public policy precludes an individual from being reinstated to serve as a sworn
officer in a law enforcement agency if that individual’s service would severely
undermine reasonable public perception that the agency is uniformly committed
to the equal enforcement of the law and that each citizen of Nebraska can depend
on law enforcement officers to enforce the law without regard to race.
Appeal from the District Court for Lancaster County: Jeffre
cheuvroNt, Judge. Affirmed.
Vincent Valentino for appellants.
Jon 	Bruning, 	Attorney 	General, 	and 	Tom 	Stine 	for
appellees.
240 	277 NeBrASkA reporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

John e. Corrigan, of Dowd, Howard & Corrigan, L.L.C., and
Lawrence p. Schneider, of knaggs, Harter, Brake & Schneider,
p.C., for amicus curiae National Troopers Coalition.
Aaron 	Nisenson, 	of 	International 	Union 	of 	police
Associations, AFL-CIo, and Jane Burke, of keating, o’Gara,
Nedved & peter, p.C., for amicus curiae International Union of
police Associations, AFL-CIo.
David J. kramer and Quinn Vandenberg, of Baird, Holm,
L.L.p., and Clare pinkert, Steven C. Sheinberg, Steven M.
Freeman, and Deborah r. Cohen, of Anti-Defamation League,
for amicus curiae Anti-Defamation League.
wright, coNNolly, gerrard, StePhaN, mccormack , and
miller-lermaN, JJ., and SieverS, Judge.
gerrard, J.
From its very inception, the State of Nebraska has been
founded upon principles of equality and tolerance that the
ku klux klan, from its very inception, has used violence and
terror to oppose. When robert Henderson, a veteran trooper
of the Nebraska State patrol, joined the ku klux klan, he
voluntarily associated himself with an organization that is
expressly opposed to Nebraska’s founding principles. To rein-
state Henderson as a sworn officer of the Nebraska State patrol
would violate this state’s explicit, well-defined, dominant pub-
lic policy. For that reason, we affirm the district court’s deci-
sion to vacate an arbitration award in Henderson’s favor.
BACkGroUND
on November 1, 2005, an internal affairs investigator for
the Nebraska State patrol was informed that a member of
the State patrol might be participating in online discussions
at a members-only Web site associated with the ku klux
klan. An investigation was commenced which revealed that
appellant Henderson had joined the knights party, a ku klux
klan-affiliated organization, and participated in online discus-
sions in a knights party online discussion forum. The inves-
tigating officer found that Henderson’s membership reflected
STATe v. HeNDerSoN 	241
Cite as 277 Neb. 240

negatively on the State patrol and brought the State patrol
into disrepute.
Henderson was fired for his activities, and the State Law
enforcement Bargaining Council (SLeBC) filed a grievance on
Henderson’s behalf, pursuant to the relevant collective bargain-
ing agreement (CBA). When the grievance was not resolved,
it was submitted to binding arbitration pursuant to the CBA.
The arbitrator determined that the firing violated the CBA,
because, according to the arbitrator, the State patrol had vio-
lated Henderson’s constitutional rights, and did not have “just
cause” for terminating his employment under the CBA. The
arbitrator ordered that Henderson be reinstated to his previ-
ous duties. The State patrol, pursuant to Nebraska’s Uniform
Arbitration Act,1 filed an application in the district court to
vacate the award.2 The district court granted the application
to vacate the award, finding that the award violated “a well-
defined and dominant public policy of this state.” Henderson
and SLeBC appeal.
ASSIGNMeNT oF error
Henderson and SLeBC assign, restated and consolidated,
that the district court erred in vacating the arbitrator’s award
and instead should have confirmed the award.
We note the State patrol’s argument that Henderson lacks
standing to prosecute this appeal. But while the original notice
of appeal in this case was filed by Henderson, an amended
notice of appeal was timely filed on behalf of Henderson and
SLeBC. The State patrol concedes that SLeBC has standing
to appeal. Therefore, we do not address Henderson’s stand-
ing, because all the issues raised by him have also been raised
by SLeBC.
STANDArD oF reVIeW
[1] In reviewing a district court’s decision to vacate, modify,
or confirm an arbitration award under Nebraska’s Uniform
Arbitration Act, an appellate court is obligated to reach a
1 Neb. rev. Stat. §§ 25-2601 to 25-2622 (reissue 2008).
2 See § 25-2613.
242 	277 NeBrASkA reporTS

conclusion independent of the trial court’s ruling as to ques-
tions of law. However, the trial court’s factual findings will not
be set aside on appeal unless clearly erroneous.3
ANALySIS
Nature aNd P riNciPleS of arbitratioN
[2] Arbitration is not a judicial proceeding; it is purely a
matter of contract.4 In this case, the CBA between the State
patrol and SLeBC provides that if an employee’s grievance
is not satisfactorily resolved, it may be referred to arbitration.
The parties in this case do not dispute that Henderson’s griev-
ance was properly submitted to arbitration.
[3] Arbitration in Nebraska is governed by the Federal
Arbitration Act if it arises from a contract involving interstate
commerce5; otherwise, it is governed by Nebraska’s Uniform
Arbitration Act.6 In this case, there is no claim that the trans-
action involved interstate commerce, so Nebraska law applies.
We note, however, that because the applicable provisions of the
Uniform Arbitration Act and the Federal Arbitration Act are
similar, we look to federal case law explaining the scope of
judicial review of arbitration awards.
We have explained that judicial review of an arbitrator’s
award is severely circumscribed.7 Appellate review of an arbi-
trator’s award is necessarily limited because “‘to allow full
3 Hartman v. City of Grand Island, 265 Neb. 433, 657 N.W.2d 641 (2003).
See, also, e.g., PaineWebber, Inc. v. Agron, 49 F.3d 347 (8th Cir. 1995);
C.R. Klewin Northeast v. City of Bridgeport, 282 Conn. 54, 919 A.2d 1002
(2007) (determination of whether arbitration award violates public policy
is reviewed de novo by appellate court).
4 See Cornhusker Internat. Trucks v. Thomas Built Buses, 263 Neb. 10, 637
N.W.2d 876 (2002).
5 See 9 U.S.C. §§ 1 to 16 (2006). See, also, Southland Corp. v. Keating,
465 U.S. 1, 104 S. Ct. 852, 79 L. ed. 2d 1 (1984); Smith Barney, Inc. v.
Painters Local Union No. 109, 254 Neb. 758, 579 N.W.2d 518 (1998).
6 §§ 25-2601 to 25-2622. See Hartman, supra note 3.
7 Jones v. Summit Ltd. Partnership Five, 262 Neb. 793, 635 N.W.2d 267
(2001), citing Apex Plumbing Supply v. U.S. Supply Co., 142 F.3d 188 (4th
Cir. 1998).
STATe v. HeNDerSoN 	243
Cite as 277 Neb. 240

scrutiny of such awards would frustrate the purpose of hav-
ing arbitration at all—the quick resolution of disputes and
the avoidance of the expense and delay associated with litiga-
tion.’”8 Strong deference is due an arbitrative tribunal.9
[4] And when parties agree to arbitration, they agree to
accept whatever reasonable uncertainties might arise from the
process.10 Because the parties to a collective bargaining agree-
ment have contracted to have disputes settled by an arbitrator
chosen by them rather than by a judge, it is the arbitrator’s
view of the facts and the meaning of the contract that they have
agreed to accept.11 Courts do not sit to hear claims of factual or
legal error by an arbitrator as an appellate court does in review-
ing decisions of lower courts.12 In other words, a court may
not overrule an arbitrator’s decision simply because the court
believes that its own interpretation of the contract, or the facts,
would be the better one.13
Therefore, in this case, we do not revisit the arbitrator’s
factual findings, interpretation of the CBA, or ultimate con-
clusion that the State patrol violated the CBA in its ter-
mination of Henderson’s employment. Nor do we revisit
the arbitrator’s discussion of constitutional issues, although
his conclusions on those issues are highly suspect.14 The
State patrol does not contend, nor is there any basis in the
record to conclude, that any of the statutory bases under the
Uniform Arbitration Act for vacating an arbitration award are
8 Jones, supra note 7, 262 Neb. at 798, 635 N.W.2d at 271.
9 Id.
10 Id., citing Raiford v. Merrill Lynch, Pierce, Fenner & Smith, 903 F.2d 1410
(11th Cir. 1990).
11 Paperworkers v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. ed. 2d 286
(1987).
12 Id.
13 See W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 103 S. Ct. 2177,
76 L. ed. 2d 298 (1983).
14 See, e.g., Weicherding v. Riegel, 160 F.3d 1139 (7th Cir. 1998); McMullen
v. Carson, 754 F.2d 936 (11th Cir. 1985).
244 	277 NeBrASkA reporTS

applicable in this case.15 Instead, the issue in this appeal is
whether the district court correctly determined that the arbi-
trator’s award can be vacated, as the State patrol contends,
because reinstating Henderson to the State patrol would be
contrary to public policy.
In that regard, we note that the sole matter submitted to
the arbitrator for disposition was, “Did the Nebraska State
patrol violate the [CBA] or its own operating procedures or
policies when it disciplined the Grievant, . . . Henderson, on
March 15, 2006? If so, what shall be the remedy?” The issue
submitted for arbitration was consistent with the CBA, which
defines a “grievance” subject to arbitration as “a claimed
breach, misinterpretation, or misapplication of the terms of
this Agreement.” The arguments of the parties, and the deci-
sion of the arbitrator, touch on constitutional issues. But we
view those issues, in light of the scope of the CBA and arbi-
tration agreement, to be subsumed in the question whether the
CBA was violated—and thus in the question whether the rem-
edy for that violation violates public policy. In other words,
we do not view this case as presenting a civil rights claim
and do not address what remedy, if any, might be appropriate
for any alleged violation of Henderson’s constitutional rights.
We note that compensatory damages might be available to a
plaintiff injured by a breach of contract even when specific
performance of the contract would violate public policy.16
But the only issue before the arbitrator in this case was the
application of the CBA, and the only issue before this court
is whether the arbitrator’s remedy for violation of the CBA
is enforceable.
P ublic Policy excePtioN
We have not previously addressed whether an arbitration
award, under the Uniform Arbitration Act, can be vacated
by a court on public policy grounds. The State patrol argues
that we should adopt such a doctrine, using the reasoning
15 See § 25-2613(a).
16 See W. R. Grace & Co., supra note 13.
STATe v. HeNDerSoN 	245
Cite as 277 Neb. 240

of the U.S. Supreme Court in cases such as W. R. Grace &
Co.17; Misco, Inc.18; and Eastern Associated Coal Corp. v.
Mine Workers.19
In W. R. Grace & Co., an arbitrator found that an employer
had unlawfully laid off employees in violation of a collec-
tive bargaining agreement, despite the fact that the employer
had been attempting to comply with a conciliation agreement
with the equal employment opportunity Commission. The
employer sought to vacate the arbitrator’s award on the ground
that it violated public policy. Although the U.S. Supreme
Court rejected the claim that the arbitrator’s interpretation of
the collective bargaining agreement violated public policy, the
Court recognized:
[A] court may not enforce a collective-bargaining agree-
ment that is contrary to public policy. . . . If the contract
as interpreted by [the arbitrator] violates some explicit
public policy, we are obliged to refrain from enforcing it.
. . . Such a public policy, however, must be well defined
and dominant, and is to be ascertained “by reference to
the laws and legal precedents and not from general con-
siderations of supposed public interests.”20
The Court extended that reasoning in Misco, Inc.,21 in which
a machine operator had been fired after marijuana was found
in his home and in his vehicle parked in his employer’s park-
ing lot. An arbitrator ordered the employee reinstated with
backpay, reasoning that the evidence did not establish that he
had used or possessed marijuana on company property, in vio-
lation of company policy. The federal district court declined to
enforce the award, and the Fifth Circuit affirmed the district
court’s conclusion that “reinstatement would violate the public
17 Id.
18 Misco, Inc., supra note 11.
19 Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 121 S. Ct.
462, 148 L. ed. 2d 354 (2000).
20 W. R. Grace & Co., supra note 13, 461 U.S. at 766 (citations omitted).
21 Misco, Inc., supra note 11.
246 	277 NeBrASkA reporTS

policy ‘against the operation of dangerous machinery by per-
sons under the influence of drugs or alcohol.’”22
The Court explained that “[a] court’s refusal to enforce
an arbitrator’s award under a collective-bargaining agreement
because it is contrary to public policy is a specific application
of the more general doctrine, rooted in the common law, that a
court may refuse to enforce contracts that violate law or public
policy.”23 That doctrine derives from the basic notion that no
court will lend its aid to one who founds a cause of action upon
an immoral or illegal act, and the doctrine is further justified by
the observation that the public’s interests in confining the scope
of private agreements to which it is not a party will go unrep-
resented unless the judiciary takes account of those interests
when it considers whether to enforce such agreements.24 In the
common law of contracts, this doctrine has served as the foun-
dation for occasional exercises of judicial power to abrogate
private agreements.25
But, the Court cautioned, while a court may not enforce
a collective bargaining agreement that is contrary to public
policy, a court’s refusal to enforce an arbitrator’s interpretation
of a collective bargaining agreement “is limited to situations
where the contract as interpreted would violate ‘some explicit
public policy’ that is ‘well defined and dominant, and is to
be ascertained “by reference to the laws and legal precedents
and not from general considerations of supposed public inter-
ests.”’”26 Thus, the Court explained,
[t]wo points follow from our decision in W. R. Grace.[27]
First, a court may refuse to enforce a collective-bargaining
agreement when the specific terms contained in that
agreement violate public policy. Second, it is apparent
that our decision in that case does not otherwise sanction
22 Id., 484 U.S. at 35.
23 Id., 484 U.S. at 42.
24 Id.
25 Id.
26 Id., 484 U.S. at 43.
27 W. R. Grace & Co., supra note 13.
STATe v. HeNDerSoN 	247
Cite as 277 Neb. 240

a broad judicial power to set aside arbitration awards as
against public policy. Although we discussed the effect
of that award on two broad areas of public policy, our
decision turned on our examination of whether the award
created any explicit conflict with other “laws and legal
precedents” rather than an assessment of “general con-
siderations of supposed public interests.” . . . At the very
least, an alleged public policy must be properly framed
under the approach set out in W. R. Grace,[28] and the vio-
lation of such a policy must be clearly shown if an award
is not to be enforced.29
Based on that holding, the Court concluded:
[T]he formulation of public policy set out by the Court
of Appeals did not comply with the statement that such
a policy must be “ascertained ‘by reference to the laws
and legal precedents and not from general considerations
of supposed public interests.’” . . . The Court of Appeals
made no attempt to review existing laws and legal prece-
dents in order to demonstrate that they establish a “well-
defined and dominant” policy against the operation of
dangerous machinery while under the influence of drugs.
Although certainly such a judgment is firmly rooted in
common sense, we explicitly held in W. R. Grace[30] that
a formulation of public policy based only on “general
considerations of supposed public interests” is not the
sort that permits a court to set aside an arbitration award
that was entered in accordance with a valid collective-
bargaining agreement.31
The Court further explained that even if the Fifth Circuit’s
formulation of public policy was accepted, no violation of
that public policy had been shown, because the marijuana
found in the employee’s home and car did not establish that
his reinstatement violated a public policy against the opera-
tion of dangerous machinery by persons actually under the
28 Id.
29 Misco, Inc., supra note 11, 484 U.S. at 43.
30 W. R. Grace & Co., supra note 13.
31 Misco, Inc., supra note 11, 484 U.S. at 44.
248 	277 NeBrASkA reporTS

influence of drugs. That conclusion, the Court reasoned, rested
on assumptions that were insufficient to support vacating the
award and inconsistent with the factual findings made by
the arbitrator.32
The Court elaborated upon those principles in Eastern
Associated Coal Corp.,33 in which the lower courts had refused
to vacate an arbitration award ordering reinstatement of a truck-
driver who had tested positive for marijuana. The Court framed
the issue presented in the case as “not whether [the employ-
ee’s] drug use itself violates public policy, but whether the
agreement to reinstate him does so.”34 The Court agreed with
the employer, “in principle, that courts’ authority to invoke the
public policy exception is not limited solely to instances where
the arbitration award itself violates positive law.”35 But the
Court reiterated that the public policy exception is narrow and
must satisfy the principles explained in W. R. Grace & Co. and
Misco, Inc.36 And the Court reasoned that in the case before it,
the employee’s reinstatement was not contrary to public policy,
because it was not unlawful despite a detailed statutory and
regulatory scheme that represented a careful determination of
public policy by the legislative and executive branches.37
[5] Although 	this 	court 	has 	not 	previously 	recognized
the public policy exception to the enforcement of arbitra-
tion awards, the basic common-law contract principles upon
which the Court relied in Misco, Inc.38 are well established
in Nebraska,39 and other jurisdictions to have considered the
32 Id.
33 Eastern Associated Coal Corp., supra note 19.
34 Id., 531 U.S. at 62-63.
35 Id., 531 U.S. at 63.
36 See W. R. Grace & Co., supra note 13, and Misco, Inc., supra note 11.
37 Eastern Associated Coal Corp., supra note 19.
38 Misco, Inc., supra note 11.
39 See, e.g., Lexington Ins. Co. v. Entrex Comm. Servs., 275 Neb. 702, 749
N.W.2d 124 (2008); Stewart v. Bennett, 273 Neb. 17, 727 N.W.2d 424
(2007); Myers v. Nebraska Equal Opp. Comm., 255 Neb. 156, 582 N.W.2d
362 (1998); Custer Public Power Dist. v. Loup River Public Power Dist.,
162 Neb. 300, 75 N.W.2d 619 (1956).
STATe v. HeNDerSoN 	249
Cite as 277 Neb. 240

question have taken an approach consistent with the U.S.
Supreme Court’s.40 We agree with those jurisdictions and like-
wise hold that a court may refuse to enforce an arbitration
award that is contrary to a public policy that is explicit, well
defined, and dominant.41 Such a public policy must be ascer-
tained by reference to laws and legal precedents, not from
general considerations of supposed public interests, but the
arbitration award need not itself violate positive law to be
unenforceable as against public policy.42
With 	that 	established, 	we 	turn 	to 	a 	consideration 	of
Henderson’s relationship with the ku klux klan and what it
represents, and the Nebraska public policy concerns that rela-
tionship implicates.
heNderSoN’S affiliatioN with ku klux klaN
Henderson joined the ku klux klan in 2004. In 2003,
Henderson’s wife had left him in favor of a Hispanic man,
and an action for dissolution of marriage was filed. This led
Henderson, in June 2004, to pay a $35 membership fee to join
the knights party. Henderson admitted that the knights party
is essentially the same entity as the ku klux klan. A knights
party application form, obtained by the State patrol investiga-
tion, explained the knights party as follows:
40 See, e.g., Westmoreland v. Westmoreland Intermediate, 595 pa. 648, 939
A.2d 855 (2007); In re Merrimack County (NH PELRB), 156 N.H. 35,
930 A.2d 1202 (2007); NJ Turnpike Auth. v. Local 196, 190 N.J. 283, 920
A.2d 88 (2007); Metro. Police Dept. v. Public Employee, 901 A.2d 784
(D.C. 2006); City of Boston v. Boston Police Patrolmen’s, 443 Mass. 813,
824 N.e.2d 855 (2005); CVN Group, Inc. v. Delgado, 95 S.W.3d 234 (Tex.
2002); Regional Transit Auth. v. Transit Union, 91 ohio St. 3d 108, 742
N.e.2d 630 (2001); State Corr. Officers & Pol. Benev. v. State, 94 N.y.2d
321, 726 N.e.2d 462, 704 N.y.S.2d 910 (1999); Buzas Baseball v. Salt
Lake Trappers, 925 p.2d 941 (Utah 1996); State Auditor v. Minn. Ass’n of
Pro. Emp., 504 N.W.2d 751 (Minn. 1993); Bureau of Maine State Police v.
Pratt, 568 A.2d 501 (Me. 1989); AFSCME v. State of Illinois, 124 Ill. 2d
246, 529 N.e.2d 534, 124 Ill. Dec. 553 (1988); New Haven v. AFSCME,
Council, Local 530, 208 Conn. 411, 544 A.2d 186 (1988); Amalgamated
Transit Union v. MTA, 305 Md. 380, 504 A.2d 1132 (1986).
41 See Eastern Associated Coal Corp., supra note 19.
42 See id.
250 	277 NeBrASkA reporTS

The knights party is always looking for good men
and women to associate with and work toward White
Christian revival.
. . . The knights’ party is not a secret society but rather
a political movement, an alternative from the November
Criminals of the republican party and Democrat party.
. . . .
We are a political party building a strong foundation
nation wide. We do not run candidates at this time so that
all financial resources can be invested into the grass roots
level - therefore we do not fall under the federal politi-
cal party guidelines. Unlike the other political parties
where they have to make public the names of contributors
and associates. We do not. your klan association is kept
strictly confidential.
We 	are 	a 	Christian 	organization 	and 	in 	spite 	of
what enemies of the klan say or in spite of those who
appear on talk shows who claim they are klansmen and
klanswomen, we are nonviolent and won’t allow such
behavior. We are not opposed, however to self-defense
only aggressive behavior.
on the application form, the applicant was asked to attest to
the following:
I am white and not of racially mixed descent. I am
not married to a nonwhite. I do not date nonwhites no[r]
do I have nonwhite dependents. I believe in the ideals of
Western Christian civilization and profess my belief in
Jesus Christ as the Son of God.
I understand that The knights party is legal and law
abiding and that I will never be asked to commit an
unlawful act.
. . . .
I agree to follow the guidelines as set by headquarters
to the best of my ability and to do what I am able to pro-
mote the interests of The knights party and its ultimate
goal of political power and White Christian revival.
. . . .
I understand I will be expected to be honest, ethical,
sacrificing, dedicated, disciplined, and loyal.
STATe v. HeNDerSoN 	251
Cite as 277 Neb. 240

And an attached letter from knights party National Director
Thomas robb, welcoming the applicant to the knights party,
explained:
The knights prides itself on being the most professional
and active pro-white movement in America and we also
have klansmen and klanswomen throughout the world.
Across the nation we are recognized as the most devoted
and experienced movement in the struggle for White
rights, White pride and White power! . . .
. . . .
Again, we welcome you as you start out on the jour-
ney to knighthood. We pray that your decision to take
this very important step was a decision based upon your
desire to actively promote this most noble cause and not
one of mere amusement. We take the problems that our
people face very seriously and wish to Knight only the
most dedicated and unselfish of individuals. We believe
that you can be this type of person; a klansman of pur-
pose, a klansman of dedication, a klansman of sacrifice,
a klansman of humility, and a klansman of loyalty. you
joined the movement to make a difference. We trust you
will not let our people, our faith, or our nation down. you
have been given a great opportunity to make a real differ-
ence for our people. Let’s make the most of it.
White Victory!
/s/
Thomas robb
(emphasis in original.)
As a result of his application and payment of the fee,
Henderson was issued a knights party membership card. The
card read, in part:
I pledge my loyalty. I will work for the preservation and
protection of the White race. I understand Jesus Christ
is our foundation and that we are not a secret army but
men and women who proclaim the need of our people
to put the true Christian faith in all areas of society,
whether economic, judicial, social, educational, scientific,
or political.
252 	277 NeBrASkA reporTS

Henderson, under the user name “White knight in Ne,”
posted messages in a knights party online discussion forum.43
In a September 20, 2005, message, Henderson stated: “I’m the
new guy from Nebraska. Just want to say hi. Hope everyone is
doing good. Give me hints how this works. THANkS !!!!” And
a few minutes later, Henderson posted the following:
I have been in law enforcement 23 yrs. My fiancee has
been working in TV news locally 8yrs. A recent hired
black anchor ie: they need people of color on the news
desk, has been trying to get real friendly with her. But
she has told him to leave her alone. She even complained
to the higher up’s. They told her not to cause trouble. So,
I contacted him, the black anchor and told him the same
thing. leave her alone. I was very polite and kind about
it. He complained to my Capt. that I was harrassing him.
I was found not to be thru and investigation done by IA.
But I was told to not contact him any more by my Capt.
My fiancee went to an atty. that specialize’s in these mat-
ters. She was told the black card wins all the time. So she
probably should start looking for another job, or just not
say anything to anyone at work.
It is pretty bad when a person can not even complain
about these things and they are told to stay away or not
say anything. over my 23 yrs in my job this sort of thing
has been getting worse, not only at work, but also with
suspects. Whites are losing there rights slowly. It’s sad.
I pray about it. I hope my prayers get answered. White
knight in Ne.
Later that day, Henderson posted again: “Can someone
put me in touch with others in the omaha, ne area that have
the same beliefs that I do. God Country and race. your
White knight in Ne.” After a response from another member
suggested that Henderson contact “Headquarters,” Henderson
replied: “Thank you for your reply. I will contact them ie: HQ.
43 Because of the informal style of these messages, there are various gram-
mar, spelling, and syntax errors. Indicating each error with a “[sic]” would
be distracting, so we reproduce each of the messages in its original form.
STATe v. HeNDerSoN 	253
Cite as 277 Neb. 240

I just feel like I’m fighting a up hill battle by myself here in
Ne. God bless. your White knight in Ne.” A few days later,
Henderson posted:
I guess I was stupid when I asked to be put in touch
with other members in Nebraska. I know evryone must be
discreet. I especially need to be discreet because of my
job ie: law enforcement. But if anyone wants to contact
me, being discreet. you can contact me by e-mail [e-mail
address redacted] or phone [telephone number redacted].
I’m in omaha. If no one contacts me because or privacy I
fully understand. your White knight in Ne.
p.S. I especially would like to know other law enforce-
ment people. As we would have alot in common.
Henderson reported that no one responded to his request for
contact, and there is no evidence of any further participation by
Henderson in knights party discussion or activities. Henderson
resigned his membership in the knights party in an e-mail sent
February 20, 2006—after the State patrol investigation had
commenced, after the State patrol investigator had concluded
that the allegations against Henderson were well founded,
and the day before the internal affairs conduct and procedures
meeting that resulted in a recommendation that Henderson’s
employment be terminated.
ku klux klaN
The ku klux klan was founded in pulaski, Tennessee, in
1865 or 1866, by former officers of the Confederacy.44 It began
as a social fraternity of pranksters, but was quickly transformed
into a terrorist organization aimed to promote and preserve
white supremacy.45 In the post-Civil War South, under the
leadership of a former Confederate general, Nathan Bedford
Forrest, the ku klux klan became a counterrevolutionary
organization that “whipped, shot, hanged, robbed, raped, and
44 See Church of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004). See,
also, Allen W. Trelease, White Terror: The ku klux klan Conspiracy and
Southern reconstruction (1971).
45 See, Kerik, supra note 44; Trelease, supra note 44.
254 	277 NeBrASkA reporTS

otherwise outraged Negroes and republicans across the South
in the name of preserving white civilization.”46 The movement
was from the start, and still is, highly decentralized, but “[t]he
overriding purpose of the ku klux movement, no matter how
decentralized, was the maintenance or restoration of white
supremacy in every walk of life.”47
The ku klux klan was officially “disbanded” by Forrest
when even he proved unable to control it, but local units
continued to operate until sent into hiding by federal troops48
empowered by federal legislation specifically enacted to com-
bat the ku klux klan.49 It reorganized in 1915 and was
extraordinarily successful due to a nascent civil rights move-
ment, urbanization, northern migration of blacks, and immi-
gration.50 The movement fragmented again after the Second
World War but gained new strength in the wake of Brown v.
Board of Education51 and in opposing the growing civil rights
movement.52 Between 1955 and 1965, the ku klux klan or ku
klux klan sympathizers perpetrated more than 200 bombings
and murdered 40 civil rights workers.53 Although the ku klux
klan’s threat has waned since, it has recently begun to regain
strength by advancing an anti-immigrant message, much as
it did during its heyday in the 1920’s, when its meteoric
46 Trelease, supra note 44 at xi. See, also, Kerik, supra note 44.
47 Trelease, supra note 44 at xlvi.
48 Anti-Defamation League, ku klux klan - History, http://www.adl.org/
learn/ext_us/kkk/history.asp (last visited Feb. 26, 2009).
49 See, generally, Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. ed.
2d 535 (2003).
50 See id.
51 Brown v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. ed. 1083
(1955).
52 See, generally, Black, supra note 49; John George & Laird M. Wilcox,
Nazis, Communists, klansmen, and others on the Fringe: political
extremism in America (1992), citing George Thayer, The Farther Shores
of politics (1967).
53 KKK: Inside American Terror (National Geographic Channel television
broadcast oct. 15, 2008).
STATe v. HeNDerSoN 	255
Cite as 277 Neb. 240

rise was fueled by fear of Catholic european immigrants.54
over its long history, the ku klux klan has always managed
to rebuild.55
Nebraska has not been immune to the ku klux klan’s influ-
ence. The ku klux klan began actively recruiting members in
Nebraska in 1921.56 Soon, the ku klux klan claimed 45,000
members in Nebraska, and public demonstrations, parades, and
cross burnings grew common.57 The ku klux klan was vigor-
ous in its campaigns against blacks, Jews, foreigners, Catholics,
and women suffragists.58 early resistance from key political
officials and newspapers, however, blunted the ku klux klan’s
appeal in Nebraska, and “although it would linger in a number
of communities well into the 1930s, [it] soon faded from the
public scene.”59 But not before it divided communities with
anger and hostility and engendered fear of violence among
those that it targeted for exclusion.60
The ku klux klan’s history and notoriety give it, and its
symbols, influence and meaning greatly disproportionate to its
remaining membership. The ku klux klan has been character-
ized as “‘“[t]he world’s oldest, most persistent terrorist organi-
zation.”’”61 There is little doubt that the ku klux klan’s main
objective remains to establish a racist white government in the
54 See id.
55 Id.
56 Michael W. Schuyler, The Ku Klux Klan in Nebraska, 1920-1930, 66
Nebraska History 234 (1985).
57 Id.
58 kathryn Watterson, Not By The Sword: How the Love of a Cantor and His
Family Transformed a klansman (1995). See, also, Schuyler, supra note
56; patricia A. Welker, The Church in Two Diverse Communities During
the 1920s: Guthrie Center, Iowa, Sidney, Nebraska, and a Pragmatic
Minister, 44 Journal of the West 62 (2005).
59 Schuyler, supra note 56 at 252.
60 See, Schuyler, supra note 56; Welker, supra note 58.
61 See Black, supra note 49, 538 U.S. at 388 (Thomas, J., dissenting), quot-
ing M. Newton & J. Newton, The ku klux klan: An encyclopedia (1991).
See, also, KKK: Inside American Terror, supra note 53.
256 	277 NeBrASkA reporTS

United States.62 The ku klux klan, like the burning cross that
is its most dramatic and visible sign, is a symbol of organized
violence, physical as well as verbal, directed against blacks.63
“[N]o single group more starkly demonstrates the endurance of
dark social forces in the United States—racism, religious big-
otry, extralegal vigilantism, moral authoritarianism—than the
klan, a hooded secret order now well into its second century
of existence.”64
Nor is there any doubt that the knights party is heir to the
historical ku klux klan. The knights party attempts to make
itself respectable by presenting itself as representing Christian
family values, and this approach has made it one of the larg-
est traditional ku klux klan groups operating today.65 But the
record establishes that the knights party, while it purports to
discourage violence, expressly claims to be the ku klux klan
founded in pulaski over 140 years ago and the ku klux klan
that marched in Washington, D.C., in the 1920’s. The knights
party invokes and claims the legacy of Nathan Bedford Forrest.
The knights party uses the ceremonial robes and Celtic cross
that have traditionally represented the ku klux klan.66 And
the knights party invokes the same political views, declaring,
“God gave the entire earth to be the white man and woman’s
domain. That is our purpose in being here; to subdue and rule.
Under our Christian guidance, all races will lead a much hap-
pier existence. Law and order is what they need.”
The knights party claims to be nonviolent, and there is no
evidence in the record that it is not. But it is also worth not-
ing that while the knights party officially disclaims violence,
distance from violence is a tactic that traditional ku klux klan
62 See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 115
S. Ct. 2440, 132 L. ed. 2d 650 (1995) (Thomas, J., concurring).
63 Church of Amer., Ku Klux Klan v. City of Gary, IN, 334 F.3d 676 (7th Cir.
2003).
64 Shawn Lay, ed., The Invisible empire in the West: Toward a New Historical
Appraisal of the ku klux klan of the 1920s at 1 (1992).
65 KKK: Inside American Terror, supra note 53.
66 See Church of American Knights Ku Klux v. City of Erie, 99 F. Supp. 2d
583 (W.D. pa. 2000).
STATe v. HeNDerSoN 	257
Cite as 277 Neb. 240

groups have used in the past.67 It has been historically com-
mon for the ku klux klan to publicly deny that its move-
ment has engaged in illegal activity, or even that it is racist
or anti-Semitic.68 Among the first prescripts of the ku klux
klan, dating to 1868, is a “formal statement of character and
purpose” that proclaims the ku klux klan to be “‘an institu-
tion of Chivalry, Humanity, Mercy, and patriotism’” intended
“‘to protect the weak, the innocent, and the defenceless, from
the indignities, wrongs, and outrages of the lawless, the vio-
lent, and the brutal’” and to support the U.S. Constitution and
constitutional laws.69 But despite that rhetoric, not dissimilar to
that advanced by the knights party today,
[i]t would be hard to imagine a greater parody than this
on the ku klux klan as it actually operated. It frequently
pandered to men’s lowest instincts; it bullied or brutalized
the poor, the weak, and the defenseless; it was often the
embodiment of lawlessness and outrage; . . . and it set at
defiance the Constitution and laws of the United States.70
The ku klux klan’s public statements disavowing lawlessness
have often been self-serving attempts to avoid prosecution for
acts of violence.71 But beyond that, even when technically true,
they are not entirely compelling, given the nature of ku klux
klan ideology. As one historian has observed, the ku klux
klan provides “cultural sanction” for violence
from each of the strands in the klan’s world view: its
reactionary populism, its racialism, its gender conven-
tions, and its overall alarm about the state of society and
government. Together, they worked to prompt and ennoble
white male violence undertaken in defense of family and
community. To put it another way, there were no signifi-
cant restraining elements in klan culture that might act
67 KKK: Inside American Terror, supra note 53.
68 See Nancy MacLean, Behind the Mask of Chivalry: The Making of the
Second ku klux klan (1994). See, also, George & Wilcox, supra note
52.
69 Trelease, supra note 44 at 16-17.
70 Id. at 17.
71 See MacLean, supra note 68.
258 	277 NeBrASkA reporTS

to inhibit violence against outsiders to klansmen’s idea
of community.72
Stated another way, the knights party’s attempt to disclaim
violence is insufficient to excuse its continued endorsement
of a historical legacy of violence, and the inevitably violent
consequences of its hateful political and social propaganda.
Given the history of the ku klux klan, and the knights party’s
express claim to that history, we have little difficulty in con-
cluding that for all practical purposes, joining the knights
party is the same as joining the historical ku klux klan. Nor
is it difficult to conclude that the historical ku klux klan rep-
resents discrimination, violence, and armed resistance to law-
ful authority.
NebraSka P ublic Policy
The State of Nebraska was founded only a year or two after
the ku klux klan. Nebraska entered the Union on March 1,
1867, upon the “fundamental condition,” imposed by Congress
as a requirement for Nebraska’s statehood, that “there shall
be no denial of the elective franchise, or of any other right,
to any person, by reason of race or color.”73 Among the first
official acts of the newly assembled Nebraska Legislature was
to transmit to the president of the United States its authen-
ticated assent to that condition, so that the president could
proclaim Nebraska’s admission to the Union.74 The principle
that laws should be enforced without regard to race is, in
this sense, not only a fundamental public policy of the State
of Nebraska—it is the most fundamental public policy of the
State, as the condition upon which Nebraska’s admission to the
Union depended.
That “fundamental condition,” as an expression of public
policy, is reflected throughout Nebraska law. The Nebraska
Constitution provides that “[n]o person shall be . . . denied
equal protection of the laws”75 and, as recently amended, also
72 Id. at 150.
73 See Gen. Stat. ch. 1 (1873).
74 See id.
75 Neb. Const. art. I, § 3.
STATe v. HeNDerSoN 	259
Cite as 277 Neb. 240

provides that “[t]he state shall not discriminate against, or grant
preferential treatment to, any individual or group on the basis
of race, sex, color, ethnicity, or national origin in the operation
of public employment, public education, or public contract-
ing.”76 And since 1867, this state’s motto, expressed on the
Great Seal of the State of Nebraska, has been “equality Before
the Law.”77
More recent enactments reflect the same principles. Nebraska
law expressly prohibits discrimination on the basis of race or
religion in a variety of contexts, including public accom-
modations,78 housing,79 employment,80 insurance,81 borrowing
and lending,82 collective bargaining,83 military procurement,84
libraries,85 and National Guard service.86 The Legislature has
also authorized cities and villages to enact their own anti-
discrimination provisions.87 Nebraska law expressly provides
that “[a] person in the State of Nebraska has the right to live
free from violence, or intimidation by threat of violence . . .
regardless of his or her race, color, religion, ancestry, national
origin, gender, sexual orientation, age, or disability”88 and
imposes enhanced criminal penalties upon those who violate
those rights.89
76 Id., § 30(1).
77 See Neb. rev. Stat. § 84-501 (reissue 2008).
78 See Neb. rev. Stat. §§ 20-132, 20-134, and 20-139 (reissue 2007).
79 See Neb. rev. Stat. §§ 20-318 (reissue 2007) and 76-1495 (reissue
2003).
80 See Neb. rev. Stat. §§ 23-2531 (reissue 2007), 48-1101 et seq. (reissue
2004), and 81-1355 (reissue 2008).
81 See Neb. rev. Stat. § 44-7510 (reissue 2004).
82 See Neb. rev. Stat. § 45-1056 (reissue 2004).
83 See Neb. rev. Stat. § 48-214 (reissue 2004).
84 See Neb. rev. Stat. § 48-215 (reissue 2004).
85 See Neb. rev. Stat. § 51-211 (reissue 2004).
86 See Neb. rev. Stat. § 55-134 (reissue 2004).
87 See Neb. rev. Stat. §§ 18-1724 and 20-113 (reissue 2007).
88 Neb. rev. Stat. § 28-110 (reissue 2008).
89 See Neb. rev. Stat. § 28-111 (reissue 2008).
260 	277 NeBrASkA reporTS

It is the clearly established public policy of the State of
Nebraska that the law should be enforced without discriminat-
ing based on the race of its citizens. It is for that reason that
this court, pursuant to the administrative authority conferred
upon it by the Nebraska Constitution,90 has promulgated a
Code of Judicial Conduct providing that a judge shall perform
judicial duties without bias or prejudice.91 Because the appear-
ance of bias or prejudice is detrimental to the administration of
justice, the code also provides that
[a] judge shall not, in the performance of judicial duties,
by words or conduct manifest bias or prejudice, including
but not limited to bias or prejudice based upon race, sex,
religion, national origin, disability, age, sexual orienta-
tion, or socioeconomic status, and shall not permit staff,
court officials, and others subject to the judge’s direction
and control to do so.92
And because membership of a judge in an organization that
practices invidious discrimination gives rise to perceptions
that the judge’s impartiality is impaired, a judge “shall not
hold membership in any organization that practices invid-
ious discrimination on the basis of race, sex, religion, or
national origin.”93
But the most direct expression of the importance of ensuring
that citizens perceive law enforcement to be free of discrimi-
nation is Nebraska’s racial profiling act.94 The act explains,
“racial profiling is a practice that presents a great danger
to the fundamental principles of a democratic society. It is
abhorrent and cannot be tolerated.”95 The act prohibits police,
expressly including a member of the State patrol, from engag-
ing in racial profiling96 and requires law enforcement agencies,
90 See Neb. Const. art. V, § 1.
91 See Neb. Code of Judicial Conduct § 5-203(B)(5).
92 See id.
93 See Neb. Code of Judicial Conduct § 5-202(C).
94 See Neb. rev. Stat. § 20-501 et seq. (reissue 2007).
95 § 20-501.
96 § 20-502.
STATe v. HeNDerSoN 	261
Cite as 277 Neb. 240

including the State patrol, to adopt a written policy prohibiting
the practice.97 And it imposes requirements intended to meas-
ure and prevent the practice of racial profiling.98
The act is particularly pertinent because of the determina-
tion of public policy that led to its enactment. As the senator
introducing the measure to the Legislature explained, “[t]he
problem is that regardless of whether there is racial profiling
in Nebraska or not, there is the perception of unfairness.”99
The executive director of the Nebraska equal opportunity
Commission, testifying in support of the legislation, agreed
that “we must admit that there is a perception, and I use the
word perception loosely because actually, it’s more than a per-
ception, that some officers are engaging in racial profiling, and
this has created resentment and distrust of the police, particu-
larly in communities of color.”100 And the chairperson of the
Judiciary Committee explained that “[t]he people of Nebraska
greatly appreciate the hard work and dedication of law enforce-
ment officers in protecting the public” and that “[t]he good
name of these officers should not be tarnished by the actions
of those few who commit discriminatory practices.”101 As the
introducing senator explained,
Nebraska has always been a diverse state with an immi-
grant background. our heritage and disposition has been
that of being inclusive and accepting [in] nature. This
is one of the greatest traits of our state. That’s why I
believe it’s important to present an open, fair law enforce-
ment image for our state. . . . The problem that we
have, regardless of whether there’s racial profiling exist-
ing in Nebraska or not, [is that] we have the perception of
unfairness. Because of that perception, many people who
are stopped for a legitimate reason may think that they’re
97 § 20-504.
98 See § 20-501 et seq.
99 Floor Debate, L.B. 593, 97th Leg., 1st Sess. 7954 (May 22, 2001).
100 Judiciary Committee Hearing, L.B. 593, 97th Leg., 1st Sess. 13 (Mar. 7,
2001).
101 Floor Debate, supra note 99 at 7955.
262 	277 NeBrASkA reporTS

being stopped [or] targeted due to their race. We need to
collect data to determine whether the racial profiling does
exist in our state, and to remove the perception of unfair-
ness that we have.102
[6,7] Taken as a whole, this authority evidences an explicit,
well-defined, and dominant public policy of the State of
Nebraska that is as old as the State itself: that the laws of
Nebraska should be enforced without racial or religious dis-
crimination. But more importantly, this public policy incor-
porates, and depends upon, the public’s reasonable perception
that the laws are being enforced without discrimination. And
the Legislature’s determination in that regard makes sense.
Under our system of government, the duty of law enforcement
can be performed effectively only with the consent of the vast
majority of those citizens policed. efficient law enforcement
requires mutual respect, trust, and support.103 As the Supreme
Judicial Court of Massachusetts has persuasively explained,
“one of the most important police functions is to create
and maintain a feeling of security in communities. To
that end, it is extremely important for the police to gain
and preserve public trust, maintain public confidence, and
avoid an abuse of power by law enforcement officials.”
. . . “The image presented by police personnel to the gen-
eral public . . . ‘also permeates other aspects of the crimi-
nal justice system and impacts its overall success.’”104
We agree, and we hold that Nebraska public policy precludes
an individual from being reinstated to serve as a sworn offi-
cer in a law enforcement agency if that individual’s service
would severely undermine reasonable public perception that
the agency is uniformly committed to the equal enforcement
of the law and that each citizen of Nebraska can depend on
law enforcement officers to enforce the law without regard to
race. We emphasize that this public policy is only implicated
by behavior of the gravest nature. But we find that Henderson’s
102 Judiciary Committee Hearing, supra note 100 at 2.
103 McMullen, supra note 14. See, also, Weicherding, supra note 14.
104 City of Boston, supra note 40, 443 Mass. at 819-20, 824 N.e.2d at 861
(citation omitted).
STATe v. HeNDerSoN 	263
Cite as 277 Neb. 240

knowing and willing affiliation with the ku klux klan is
such behavior.
heNderSoN’S reiNStatemeNt violateS
NebraSka P ublic Policy
The State patrol argues that the arbitration award violates
public policy because it requires the State patrol “to employ
as a law enforcement officer an individual who has voluntarily
associated himself with the [ku klux klan] and the principles
it espouses—arguably the most reviled, feared, violent, and
racist organization in this country’s history.”105 The State patrol
concludes that requiring Henderson’s reinstatement “ignores
the reality that a law enforcement officer who embraces a creed
of racial bias and racial superiority breeds distrust, fear, and
apprehension among members of the public [and] raises con-
cerns among the public that his employer and fellow officers
may harbor similar beliefs.”106 We agree.
Given the ku klux klan’s history, any choice to join that
organization is a choice to associate with a symbol of violence
and terrorism. We also note that Henderson’s membership in
the knights party is consistent with a long-established ku klux
klan strategy of recruiting and publicizing the membership of
law enforcement officers. The ku klux klan has historically
enrolled or enlisted the support of law enforcement officers, to
stave off indictment when victims of violence, “having recog-
nized law enforcement officials among their assailants, under-
standably believed prosecution futile.”107 Consistent with that
strategy, Henderson’s continued service as a sworn employee
of the State patrol would directly advance the interests of the
ku klux klan by fostering the perception that some citizens of
Nebraska do not enjoy the same protection by law enforcement
as others.
We recognize that Henderson was not an overly active
member of the ku klux klan. But this was not a case of, as
Henderson contended at oral argument, merely “getting on the
105 Brief for appellees at 30.
106 Id. at 38.
107 MacLean, supra note 68 at 170.
264 	277 NeBrASkA reporTS

wrong web site at the wrong time.” It is beyond dispute that
he willingly joined the knights party, knowing that he was
effectively joining the ku klux klan. In joining, he endorsed
a point of view that is completely antithetical to the principles
of Nebraska law that he was bound by oath to enforce. He
provided direct financial support for the ku klux klan’s racist
activities. And his membership has provided the ku klux klan
with valuable publicity and propaganda.
The fact is that Henderson chose to associate himself with
the ku klux klan and everything that the ku klux klan rep-
resents—a legacy of hatred, bigotry, violence, and terror that
is utterly inconsistent with the responsibilities of a member of
the Nebraska State patrol. one cannot simultaneously wear the
badge of the Nebraska State patrol and the robe of a klansman
without degrading what that badge represents when worn by
any officer.
Although arbitration decisions are given great deference,
they are not sacrosanct.108 Here we cannot say that the strong
public policy favoring arbitration should trump the explicit,
well-defined, and dominant public policy that laws should be
enforced without racial or religious discrimination, and the
public should reasonably perceive this to be so. Having asso-
ciated himself with the ku klux klan, Henderson’s return to
duty would involuntarily associate the State patrol with the ku
klux klan and severely undermine public confidence in the
fairness of law enforcement and the law itself. Therefore, we
conclude that the arbitrator’s decision reinstating Henderson to
the Nebraska State patrol violates Nebraska public policy and
that the district court correctly refused to enforce the award.
Henderson and SLeBC’s assignment of error lacks merit.
CoNCLUSIoN
For the foregoing reasons, the decision of the district court
is affirmed.
affirmed.
heavicaN, C.J., not participating.
wright, J., not participating in the decision.
108 City of Boston, supra note 40.
STATe v. HeNDerSoN 	265
Cite as 277 Neb. 240

StePhaN, J., dissenting.
To most people, it would seem patently obvious that the
termination 	of 	robert 	Henderson’s 	employment 	with 	the
Nebraska State patrol was justified because his membership
in the knights party, an affiliate of the ku klux klan, reflects
negatively on the State patrol and could impair its operations or
efficiency. But that is not what the arbitrator concluded. While
I share the majority’s doubt that the arbitrator decided this
case correctly, I respectfully disagree with its conclusion that
the narrow public policy exception to binding arbitration bars
judicial enforcement of the award.
As the majority acknowledges, judicial review of an arbitra-
tion award is severely circumscribed.1 We have noted:
Appellate review of an arbitrator’s award is necessarily
limited because “to allow full scrutiny of such awards
would frustrate the purpose of having arbitration at all—
the quick resolution of disputes and the avoidance of
the expense and delay associated with litigation.” . . .
“[S]trong deference [is] due an arbitrative tribunal.” . . .
Furthermore, “‘[w]hen . . . parties [agree] to arbitration,
they [agree] to accept whatever reasonable uncertainties
might arise from the process.’”2
Arbitration is not a judicial proceeding; it is purely a matter
of contract.3 Because parties to a collective bargaining agree-
ment have contracted to have disputes settled by an arbitrator
chosen by them rather than by a judge, “it is the arbitrator’s
view of the facts and of the meaning of the contract that they
have agreed to accept. Courts thus do not sit to hear claims of
factual or legal error by an arbitrator as an appellate court does
in reviewing decisions of lower courts.”4 “[I]mprovident, even
1 See Jones v. Summit Ltd. Partnership Five, 262 Neb. 793, 635 N.W.2d 267
(2001).
2 Id. at 798, 635 N.W.2d at 271 (citations omitted).
3 See, Cornhusker Internat. Trucks v. Thomas Built Buses, 263 Neb. 10,
637 N.W.2d 876 (2002); Kelley v. Benchmark Homes, Inc., 250 Neb. 367,
550 N.W.2d 640 (1996), disapproved on other grounds, Webb v. American
Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004).
4 Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38, 108 S. Ct. 364, 98 L. ed.
2d 286 (1987).
266 	277 NeBrASkA reporTS

silly,” factfinding by an arbitrator does not permit a court to set
aside an award.5
In this case, the arbitrator found that Henderson was fired
not “because of his actions on the job,” but, rather, “because
of his beliefs and because he sought out others who shared
his beliefs.” The arbitrator determined that “the antagonism
[Henderson] seems to feel towards non-white racial groups has
never reared its ugly head on the job” and that the State patrol
“was not able to point to a single instance on the job” where
Henderson’s actions “exhibited any hatred, anger, disgust, or
discrimination towards any minority group.” The arbitrator
found, based on the State patrol’s own data, that Henderson
conducted traffic stops “in a race-neutral manner.” The arbitra-
tor found that while Henderson
may 	have 	personal 	philosophies 	that 	would 	disgust
many citizens of Nebraska, nevertheless, he has well-
hidden those beliefs and they have not interfered with
his impartial enforcement of the law. The Arbitrator has
been persuaded that, to just about anyone he knows or
interacts with professionally, [Henderson] projects him-
self as “an example of stability, fidelity and morality.”
Furthermore, there is no evidence or credible testimony
that [Henderson’s] affiliation with the knight’s party/
kkk impaired “the operation or efficiency of the State
patrol or the employee” or that his reinstatement will
likely impair “the operation or efficiency of the State
patrol or the employee.”
Based upon the record made during a 12-hour hearing, the arbi-
trator concluded that “the State patrol violated the Constitution,
the Contract, and its own policies and procedures” when it
discharged Henderson. In a finding particularly relevant to the
issue before this court, the arbitrator stated:
It is very likely that, under [several] decisions of the
United States Supreme Court, the State patrol could
have successfully defended the constitutionality of its
decision to terminate [Henderson] by either showing
some actual harm to its ability to maintain discipline and
5 Id., 484 U.S. at 39.
STATe v. HeNDerSoN 	267
Cite as 277 Neb. 240

good order within the ranks, or by showing some actual
diminution in the State patrol’s ability to perform its
police function.
That said, the State patrol bore the burden of showing
such disruptions, and the patrol failed to meet this burden.
In the final analysis, all that the Agency presented to the
Arbitrator was surmise and speculation that some opera-
tional or community-relations harm could occur; this was
precious little upon which to hang the “hat” of deciding to
terminate [Henderson].
The arbitrator also found that the State patrol failed to show
“any minimally-persuasive evidence that [Henderson’s] actions
or beliefs would cause disruptions in [Henderson’s] ability
to effectively work with the patrol’s black Troopers, or that
[Henderson’s] actions or beliefs would cause the patrol diffi-
culties with respect to the morale, efficiency, or good order of
the State patrol.”
As much as we may disagree with these findings, we are
bound by them under well-established principles of arbitra-
tion law. I agree with the majority that in deciding whether the
arbitrator’s award should be enforced, our focus is solely on
the remedy, which in this case is an order of reinstatement. To
paraphrase Eastern Associated Coal Corp. v. Mine Workers,6
the issue presented is not whether Henderson’s conduct vio-
lated public policy, but whether the enforcement of the arbitra-
tion award requiring his reinstatement would do so.
The majority correctly states that it is the “public policy of
the State of Nebraska that the law should be enforced without
discriminating based on the race of its citizens.” But in light
of the arbitrator’s factual findings, Henderson’s reinstatement
would not, in and of itself, automatically result in racial profil-
ing or some other form of discriminatory law enforcement. The
mere fact of Henderson’s reinstatement, without more, would
not violate any constitutional or statutory provision making
racial discrimination unlawful. only some unlawful conduct
committed by Henderson after reinstatement could violate
6 Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 121 S. Ct.
462, 148 L. ed. 2d 354 (2000).
268 	277 NeBrASkA reporTS

such laws and the public policy upon which they are based.
And it cannot be said on this record that such conduct is even
likely, given the arbitrator’s finding that despite his personal
beliefs, Henderson has never breached his duty to enforce the
law fairly and impartially in the past. With respect to his future
conduct, Henderson would be bound by his oath to enforce the
law fairly and in a nondiscriminatory manner, and he would be
subject to the same civil and criminal liabilities as any other
public officer if he failed to do so.7
The majority reasons that the public policy of nondiscrimi-
natory law enforcement “incorporates, and depends upon, the
public’s reasonable perception that the laws are being enforced
without discrimination.” It then accepts the State patrol’s argu-
ment that a law enforcement officer with Henderson’s affilia-
tions “‘breeds distrust, fear, and apprehension among members
of the public [and] raises concerns among the public that his
employer and fellow officers may harbor similar beliefs.’”
Were we deciding this issue in the first instance, I would
agree. But our review requires that we give deference to the
findings of the arbitrator, and the conclusion reached by the
majority necessarily rejects the arbitrator’s specific finding
that Henderson’s past affiliation had not and would not impair
the mission of the State patrol. By defining public policy so
broadly as to incorporate public perception of possible future
harm, the majority has simply upheld the State patrol’s initial
determination that Henderson’s affiliation with the knights
party reflected negatively on the State patrol and brought the
patrol into disrepute. While this may seem perfectly logical, it
necessarily repudiates the arbitrator’s findings that Henderson’s
personal affiliations and beliefs, however reprehensible, have
not affected his ability or that of the State patrol to fairly and
impartially enforce the law.
reasoning similar to that of the majority in this case was
explicitly rejected by the Supreme Court in Paperworkers
v. Misco, Inc.8 That case involved a machine operator who
7 See, 18 U.S.C. § 242 (2006); 42 U.S.C § 1983 (2000); Neb. rev. Stat.
§ 20-148 (reissue 2007).
8 Paperworkers v. Misco, Inc., supra note 4.
STATe v. HeNDerSoN 	269
Cite as 277 Neb. 240

was apprehended in the back seat of a car that was parked
on the employer’s premises. There was marijuana smoke in
the vehicle and a lighted marijuana cigarette in the front seat
ashtray. The employee did not own the car. The employee was
discharged for violating rules prohibiting the possession of
drugs on company premises, and the matter was submitted to
arbitration. The arbitrator determined that there was no proof
that the employee had actually possessed marijuana on com-
pany property and, thus, that there was no just cause for the
discharge. The arbitrator ruled the employee was entitled to
reinstatement with full seniority and backpay. A federal district
court refused to enforce the award on public policy grounds,
and an appeals court affirmed, concluding that reinstatement
would violate the public policy against operation of dangerous
machinery by persons under the influence of drugs or alcohol.
The Supreme Court determined that while this judgment was
“firmly rooted in common sense,” it did not justify refusal to
enforce the award.9 The Court held that the appeals court had
improperly drawn inferences from the facts, and it stressed that
whether the employee “had ever been or would be under the
influence of marijuana while he was on the job and operat-
ing dangerous machinery is an exercise in factfinding” which
was the arbitrator’s function, not the appellate court’s.10 The
Supreme Court made it very clear that even an inquiry into a
“possible violation of public policy” does not “excuse a court
for doing the arbitrator’s task,”11 noting:
Had the arbitrator found that [the employee] had pos-
sessed drugs on the property, yet imposed discipline short
of discharge because he found as a factual matter that [the
employee] could be trusted not to use them on the job,
the Court of Appeals could not upset the award because
of its own view that public policy about plant safety
was threatened.12
9 Id., 484 U.S. at 44.
10 Id., 484 U.S. at 44-45.
11 Id., 484 U.S. at 45.
12 Id.
270 	277 NeBrASkA reporTS

With respect to Henderson, the majority here is doing precisely
what the Supreme Court prohibited.
The arbitrator’s findings in this case are similar to those con-
sidered by a New york appellate court in State Corr. Officers
& Pol. Benev. v. State.13 There, a correctional officer was sus-
pended from duty for flying a Nazi flag from the front porch
of his home on the 55th anniversary of Adolph Hitler’s declara-
tion of war on the United States. Several newspapers through-
out the state reported the event. The department of correctional
services charged the officer with violating rules prohibiting
off-duty conduct which would “‘reflect discredit upon the
Department or its personnel’” and prohibiting an officer from
affiliating with groups having interests which would “‘interfere
with the impartial and effective performance’” of the officer’s
duties.14 The suspension was submitted to arbitration, and the
arbitrator found no nexus between the officer’s off-duty mis-
conduct and his employment, noting the absence of “evidence
that his conduct harmed the Department’s business, adversely
affected [the officer’s] ability to perform his job, or caused
co-workers not to work with him.”15 The arbitrator concluded
that the projection of possible harm, as opposed to actual harm,
was not sufficient to permit restriction of the officer’s symbolic
free speech or regulation of his off-duty conduct.
The court rejected the department’s request that the arbitra-
tion award be vacated on public policy grounds. It noted that
it was bound by the arbitrator’s decision unless it could deter-
mine that the award violated public policy in the form of a
“well-defined constitutional, statutory or common law of this
State.”16 It concluded that because neither state statutes, regu-
lations, nor the employee manual “proscribes the reinstate-
ment of an employee who engaged in conduct as established
here but who nevertheless is found not guilty of the charges as
13 State Corr. Officers & Pol. Benev. v. State, 94 N.y.2d 321, 726 N.e.2d 462,
704 N.y.S.2d 910 (1999).
14 Id. at 324-25, 726 N.e.2d at 464, 704 N.y.S.2d at 912.
15 Id. at 325, 726 N.e.2d at 465, 704 N.y.S.2d at 913.
16 Id. at 328, 726 N.e.2d at 467, 704 N.y.S.2d at 915.
STATe v. HeNDerSoN 	271
Cite as 277 Neb. 240

submitted to the arbitrator,”17 it could not vacate the award as
violative of public policy. The court noted that “[a]s abhorrent
as [the officer’s] personal conduct is, Judges cannot reject the
factual findings of an arbitrator simply because they do not
agree with them.”18 The court also rejected the department’s
request that it apply a balancing test to determine that the
officer’s right to freedom of expression was outweighed by
the governmental interest in the safe and efficient operation of
the correctional facility, concluding
[t]o do so . . . would require us to invade the province
of the arbitrator under the guise of public policy, and to
reexamine and redetermine the merits of the case. By sub-
mitting the issue of [the officer’s] conduct to arbitration,
the parties placed upon the arbitrator the responsibility
of passing on the implications of [his] offensive conduct
under the collective bargaining agreement. We must honor
the choice of the parties to have their controversy decided
in that forum.19
In my view, the majority has rejected the findings of the
arbitrator and redecided the merits of this case under the guise
of public policy. I could accept the reasoning of the majority
that Henderson’s reinstatement would foster “the perception
that some citizens of Nebraska do not enjoy the same protec-
tion by law enforcement as others” if the arbitrator had made
any findings that Henderson’s affiliation with the knights party
affected the performance of his duties, because in that circum-
stance there would be a factual basis upon which to conclude
that Henderson could not be trusted with the duties and respon-
sibilities of law enforcement.20 But the arbitrator actually made
specific affirmative findings that Henderson’s beliefs “have not
interfered with his impartial enforcement of the law,” and it is
therefore entirely speculative to conclude that the public would
have a contrary perception if he were reinstated.
17 Id.
18 Id.
19 Id.
20 See City of Boston v. Boston Police Patrolmen’s, 443 Mass. 813, 824
N.e.2d 855 (2005).
272 	277 NeBrASkA reporTS

In concluding that Henderson’s reinstatement would violate
public policy by creating a public perception of discriminatory
law enforcement, the majority disregards the following provi-
sion of the award specifically designed to prevent or mitigate
any such perception:
Nothing in this Award shall prevent the Nebraska State
patrol from reassigning [Henderson] in the future, if
necessary to maintain the good order and efficiency of
the Agency, or to eliminate/mitigate actual civil disrup-
tions that may occur as a result of the public becoming
aware of [Henderson’s] association with the knight’s [sic]
party, Christian Concepts, the ku klux klan, or any other
such group[.]
Henderson’s counsel acknowledged at oral argument that if the
award were enforced and Henderson were reinstated, the State
patrol “could assign him to the supply division. They could
[assign] him to communications. They could have him clean-
ing out desks for the next three or four years if they wished
to do that.” other courts, including the Supreme Court, have
considered the flexibility of an arbitral award of reinstatement
in considering whether it violated public policy. In Misco,
Inc.,21 where the machine operator charged with marijuana use
was ordered reinstated to his old position or an equivalent one
for which he was qualified, the Supreme Court noted that the
employer had not established that he “would pose a serious
threat to the asserted public policy in every job for which he
was qualified.”22 Similarly, the eighth Circuit Court of Appeals
held that an arbitration award requiring reinstatement of an
employee who had breached safety regulations at a liquid natu-
ral gas storage facility did not violate public policy where it
permitted reassignment to a different, less-sensitive position in
which safety concerns were not implicated.23
Finally, 	I 	am 	concerned 	that 	the 	majority 	understates
the significance of the arbitrator’s finding that Henderson’s
21 Paperworkers v. Misco, Inc., supra note 4.
22 Id., 484 U.S. at 45.
23 Midamerican Energy v. Intern. Broth. of Elec., 345 F.3d 616 (8th Cir.
2003).
STATe v. HeNDerSoN 	273
Cite as 277 Neb. 240

discharge violated his First Amendment rights. Again, while
we may disagree strongly with this finding, we are bound by it
in the procedural posture of this case. That being so, the result
reached by the majority necessarily implies that it is willing
to ignore the State’s violation of Henderson’s constitutional
rights because if he were reinstated, the public may perceive
that he may violate someone else’s rights in the future, despite
the arbitrator’s specific findings that he has never done so in
the past. In my view, this apparent subordination of individual
constitutional rights to the “greater good” poses a far greater
risk of harm to the public policy of this state than reinstating
one misguided trooper and reassigning him to some mundane
position well behind the front lines of law enforcement, where
he would pose no actual or reasonably perceivable threat to
the mission of the State patrol or the welfare of the public
it serves.
In summary, while I disagree with many of the arbitrator’s
factual findings and legal conclusions and share the majority’s
revulsion toward Henderson’s affiliation with the knights party
and everything that organization stands for, I cannot conclude
that the award of reinstatement would violate public policy
under the restrictive standard prescribed by the U.S. Supreme
Court in W. R. Grace & Co. v. Rubber Workers24; Misco,
Inc.25; and Eastern Associated Coal Corp.26 I therefore respect-
fully dissent.
coNNolly, J., joins in this dissent.
24 W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 103 S. Ct. 2177, 76
L. ed. 2d 298 (1983).
25 Paperworkers v. Misco, Inc., supra note 4.
26 Eastern Associated Coal Corp. v. Mine Workers, supra note 6.
274 	277 NeBrASkA reporTS