The Volokh Conspiracy

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Free Speech

Anti-Israel Advocacy at University Doesn't Create Illegal "Hostile Environment" for Israeli Citizens or Jews

The same logic, of course, would apply to criticism of other countries and governments, such as China, Russia, the Palestinian government, and more.


From Judge Mark Hornak's decision two weeks ago in Newman v. Point Park Univ. (W.D. Pa.), which I think reaches the correct result:

Plaintiff Channa Newman is a Jewish, Israeli, and Czech woman born in 1942 who is employed as a professor by Defendant, Point Park University, a post-secondary education institution located in downtown Pittsburgh. Plaintiff has worked at Point Park as a professor and at times as a Department Chair since 1964. Plaintiff's Amended Complaint consists of 19 counts encompassing 628 paragraphs over 75 pages and asserts an array of statutory discrimination, retaliation, and hostile work environment claims against Defendant, alleging that Defendant discriminated, retaliated, and harassed Plaintiff on the basis of her religion, race/national origin, sex, and age.

The overall dispute between Plaintiff and Defendant originated in what appears to have been at times a heated set of academic and philosophical contentions between Plaintiff and other faculty members at the University—and Plaintiff broadly alleges that this dispute has infiltrated Defendant's administration, the administration's decision making, and the student body….

The court allowed plaintiff to proceed with her discrimination and retaliation claims, but rejected her hostile environment claim:

[Plaintiff alleges] a hostile work environment due to Dr. Ross's and Dr. Hines's viewpoints or disagreements with Plaintiff on contentious geopolitical issues in the course of their academic roles at the University, leading to what Plaintiff describes as "shunning" or "evasion," as these allegations are a focus of Defendant's Motion…. [But plaintiff does not show] that Drs. Ross or Hines or the student body held their viewpoints on these contentious issues to cause hostility directed toward Plaintiff or had and advocated discriminatory views to harm Plaintiff specifically….

Plaintiff claims that Dr. Ross, in particular, held and advanced in the classroom and beyond strongly differing viewpoints from those of Plaintiff on the Israel-Palestine conflict and the responses to it, that Drs. Ross and Hines support different political movements in those regards than Plaintiff does (specifically, Plaintiff alleges that they support the "Boycott, Divestment, Sanctions" or "BDS" movement and criticize Israeli policy regarding Palestinian settlements), and that Plaintiff considers those viewpoints on those topics as anti-Semitic and therefore by definition to be targeted at her. To the extent that Plaintiff alleges that Dr. Ross "used his position" to espouse a BDS-based or related agenda in the classroom where he taught and created a hostile work environment for Plaintiff in doing so, the Court would observe that there are competing assessments of the basis for such views…..

Plaintiff has not shown that Defendant has subjected her to an objectively hostile work environment by its not suppressing, or otherwise protecting Plaintiff from, the personal views and academic interests of some of Defendant's professors and students related to these geopolitical topics. The record does not plausibly make a "showing" that Defendant created an objectively hostile work environment for Plaintiff or for a reasonable employee in Plaintiff's shoes by allowing controversial theories and ideas that directly compete with Plaintiff's own views to be discussed among professors and/or students in a classroom or academic setting or engaged with outside of the classroom. Rather, Plaintiff's allegations amount to her strong and fundamental disagreement with the viewpoints and public actions that she attributes to either or both of Drs. Ross and Hines, largely manifesting in actions outside of the classroom including participating in protests and posting content on social media, and her disagreement with allegedly related views of and the speech and actions by Point Park students on those same matters.

Plaintiff posits that such advancement of these ideas and concepts by Drs. Ross and Hines and by students inherently makes her an outcast given her vigorously opposing viewpoints coupled with her race and religion. But in the Court's judgment, accepting that argument would prove too much, as it would invalidate as a facial matter and on Title VII grounds an entire academic and public debate and give Plaintiff a veto over others engaging in that same debate. It would effectively compel, under the pain of Title VII liability, that any speech and viewpoints held and espoused by others as part of that debate and that are contrary to Plaintiff's point of view be reformulated to be consistent with Plaintiff's views on such topics.

{In essence, Plaintiff contends that the way in which she was treated in the workplace was part of an overarching movement by supporters of the BDS movement to discriminate against her due to her Israeli citizenship, Jewish race and religion, and her support of Israel in the Israel-Palestine conflict. Plaintiff alleges that Dr. Ross supports the BDS movement and that some students may also support the movement (given, for example, their participation in protests relative to it). As the Court has noted, these allegations taken as they are stated reflect a core disagreement between private individuals expressing differing positions on a topic of vigorous ongoing political debate.

Such disagreements on a contentious geopolitical conflict do not in and of themselves form the basis of a hostile work environment claim ….. If such were the case, then as a practical consequence, the fair employment practice laws invoked by Plaintiff would serve as parking brake on those academic and public debates about those highly contentious topics and would put the thumb of those fair employment practice laws on the First Amendment scale, tipping it irrevocably in favor of Plaintiff's point of view on those same topics.

In short, the natural and probable consequence of Plaintiff's position is that advocacy of the BDS movement (or any other criticism of the actions of the Israeli government by other faculty members or students) in an academic employment setting is per se unlawful discrimination on the basis of race, national origin, and/or religion, and that such, as a matter of law, generates an objectively hostile work environment. The Court is not aware of case law that would support that position.

The Court of course recognizes the contentious nature of the debate surrounding the BDS movement, including the stance of some, including Plaintiff, that BDS activities are by definition a form of anti-Semitism simply by their existence and articulation, and her contention that their very existence in her workplace necessarily constitutes unlawful "hostile environment" discrimination against her. For example, Plaintiff broadly contends that "Israeli and Jewish students and scholars have been subjected to prejudice, shunning, exclusion, and discrimination on campuses by BDS proponents in this country and abroad," and she cites scholarship in her Response to Defendant's Motion to Dismiss that contends that BDS, specifically any academic boycott of Israel and Zionist voices from higher education, is necessarily anti-Semitic conduct, and that it is therefore and more specifically necessarily conduct directed at her by its very existence, thereby generating Title VII liability for the Defendant.

However, Plaintiff's effort to characterize support for these topics (or at least advocacy contrary to the position of the Israeli government) by Dr. Ross, Dr. Hines, and certain students at Point Park University, as well as the fact of academic discussion of BDS at the University, as inherently severe unlawful discrimination such that those allegations in and of themselves make out a hostile work environment claim of discrimination against her lacks legal support. The Court is aware of no cases that draw that conclusion, and the parties have advanced none. And the actions of other academics and students on other campuses is not germane to the issues presented by this asserted claim in this specific case.

Thus, no matter the divisiveness of the debate surrounding the BDS movement (or other philosophical viewpoints parallel to the BDS movement's opposition to the actions of the Israeli government) nor the validation of Plaintiff's point of view by some but not all engaged in the academic debate outside of the Defendant's campus and workplace, the Court cannot conclude that association with BDS statements and principles that is not directly and specifically targeted at Plaintiff by and among Defendant's professors and students objectively could create a hostile work environment claim against Defendant.}