The Volokh Conspiracy
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DePaul Professor Who Wrote Anti-Palestinian Article, Was Censured by Faculty Council, Loses Contract, Defamation, and Discrimination Claim
From Hill v. DePaul Univ., which was decided in September by the Illinois Appellate Court (Justice Martin, joined by Justices Rochford and Hoffman) but which I missed at the time:
Jason Hill is a tenured professor of philosophy at DePaul University in Chicago. Professor Hill authored an article, which he describes as an "op-ed," that appeared in the online publication The Federalist in April 2019 titled "The Moral Case for Israel Annexing the West Bank – and Beyond." The article noted that Benjamin Netanyahu had been recently elected to a fifth term as Israeli prime minister, having campaigned on a promise to "annex Jewish settlements in occupied Palestinian territories." Professor Hill wrote that the election victory "will, hopefully, see the enactment of Netanyahu's promise." He went on to argue that "Israel has the moral right to annex all of the West Bank *** for a plethora of reasons." The article contains the following subheadings: (1) "Israel's Mistake Was Allowing the Palestinian Pretense," (2) "The Palestinian Authority is a Terrible Government," (3) "Israel Has Every Right to Defeat Terrorists," and (4) "Why Palestinians Have No Moral Authority." Among Professor Hill's opinions, he wrote:
"Not all cultures are indeed equal. Some are abysmally inferior and regressive *** a strong argument can and ought to be made to strip Palestinians of their right to vote—period *** They constitute a national security threat to Israel because a core feature of their identify is a commitment to destroying Israel as a Jewish state *** only a policy of radical containment or expulsion remains a viable option."
A note printed below the article stated, "Jason D. Hill is honors distinguished professor of philosophy at DePaul University in Chicago."
Two weeks following the publication of Professor Hill's article, Dr. Paeth [President of DePaul's Faculty Council] drafted a resolution titled "Faculty Council Resolution on Academic Freedom and Responsibility," which contained statements critical of Professor Hill's article while also acknowledging Professor Hill's academic freedom to publish it. A copy of the draft resolution appeared by hyperlink in conjunction with an article in DePaul's online student newspaper The DePaulia on April 30, 2019. The next day, Dr. Paeth presented the resolution to the Faculty Council for consideration. Following discussion, the Faculty Council voted 21 to 10 to approve the resolution with amendments that removed some language from the original draft. An article regarding the approved resolution appeared in The DePaulia on May 6, 2019. The article provided a link to the original draft resolution that did not reflect the amendments approved by the Faculty Council.
The preamble of the resolution asserts that Professor Hill's article (1) "misrepresents the history of the Israeli-Palestinian conflict," (2) "distorts the facts about the current state of Israeli-Palestinian relations," (3) "promotes racisms toward Arabs generally and Palestinians in particular," and (4) "advocates for war crimes and ethnic cleansing against the Palestinian populations of the West Bank and the Gaza Strip." It goes on to state that the Faculty Council "affirms Professor Hill's right to publish and express his opinions consistent with the Faculty Handbook, the AAUP [American Association of University Professors] Statement on Academic Freedom and Tenure, and the Guiding Principles on Speech and Expression" and "affirms that Professor Hill's article failed to exercise adequate concern for accuracy, restraint, or respect for the opinions of others, as per the AAUP guidelines." The resolution continues, stating that the Council:
"condemns in the strongest possible terms both the tone and content of Professor Hill's article, and affirms the claims that it expresses positions that are factually inaccurate, advocate war crimes and ethnic cleansing, and give voice to racism with respect to the Palestinian populations of the West Bank and Gaza Strip, as well as Arabs generally."
Finally, the resolution concludes that the Faculty Council:
"urges Professor Hill to seriously reconsider his positions on these issues, to take cognizance of the perspectives of other scholars on these issues, as well as the real harm his words have caused to students and other members of our community, and to refrain from abusing his freedom as a scholar in writing on controversial issues in the future."
A few weeks later, Provost Ghanem sent an email to the entire DePaul community with the subject line: "A Message from Acting Provost on Free Speech and Vincentian Values." In part, the message stated:
"While I am deeply saddened that Professor Hill used his right to academic freedom and free speech to disparage one group over another, resulting in some members of our community feeling unwelcome and unsafe, I am extremely impressed by the way members of the DePaul community made their voices heard."
Hill sued, but the court concluded his claims lacked legal merit. It rejected Hill's claim that DePaul's actions breached promises made in its Faculty Handbook (see the opinion for that), and it rejected Hill's claims that the statements condemning him were defamatory.
The five [allegedly defamatory] statements were that Professor Hill's article: (1) "failed to exercise adequate concern for accuracy, restraint, or respect for the opinions of others, as per AAUP guidelines," (2) "represents an abuse of [Professor Hill's] academic freedom," and expresses positions that (3) "are factually inaccurate," (4) "advocate war crimes and ethnic cleansing," and (5) "give voice to racism." …
[W]e find that the resolution's alleged defamatory statements are nonactionable, pure expressions of opinion. Insofar as the statements bore on Professor Hill's conduct, qualifications, or character, the resolution stated the factual basis for the opinions it expressed—the existence and content of Professor Hill's article…. [And] the resolution's opinions about the article are evaluative. That is, they express a value judgment of Professor Hill's article…. Evaluative opinions are not actionable since, by definition, such statements are based on disclosed facts, i.e., the work product evaluated.
Like a movie or book review, one can judge the merit of the evaluation or form their own opinion of the work product simply by viewing it independently. Such is the natural consequence of publishing a work for public consumption. Evaluation, positive or negative, is to be expected. Just as the first amendment protected Professor Hill's freedom to publish his "op-ed," it also protects responsive criticism like the statements in the resolution….
Further, the context weighs toward finding that the resolution's statements are not actionable. The resolution is fundamentally an academic's or group of academics' criticism of the views expressed in another academic's work on a controversial subject. "[I]t is well established in Illinois that academic evaluations and decisions are not subject to judicial review." Some courts and commentators have suggested that courts should not be the arbiters of academic debate. Rather, "[m]ore papers, more discussion, better data, and more satisfactory models—not larger awards of damages—mark the path toward superior understanding of the world around us." …
And the court rejects Hill's discrimination claim:
Professor Hill describes himself as "a dark-complected man of Afro-Caribe descent," of Jamaican origin, and homosexual. Professor Hill alleged that other DePaul faculty members—none of whom shared Professor Hill's race, national origin, or sexual orientation—have made "controversy-generating" statements concerning the Israeli-Palestinian conflict but were not subject to a Faculty Council resolution, as he was. In addition, he claimed that DePaul faculty orchestrated a student protest against him, and DePaul allowed a digital bulletin board to be created in which pejorative postings accumulated that discouraged students from enrolling in his courses. Thus, Professor Hill alleged that DePaul discriminated against him on the basis of race, color, ethnicity, and sexual orientation….
To qualify as an adverse employment action [under federal antidiscrimination law], the action must be "tangible" or "material." A "tangible employment action" connotes a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." "Materially adverse" employment actions can also include "a demotion evidenced by a decrease in wage or salary, a less distinguished title, … or other indices … unique to a particular situation." "'[N]ot everything that makes an employee unhappy is an actionable adverse action.'"
In Professor Hill's opening brief, he asserts that he pled an adverse employment action by citing "numerous instances of loss of pay." However, he fails to cite any portion of the complaint in support. As best as we can glean, the complaint's only allegations that could be construed as claiming a loss in pay is that "[t]he opportunity for Dr. Hill to be awarded promotions, with concomitant wage increases, has been diminished." In his reply brief, Professor Hill contends that the Faculty Council's approval of the resolution was itself an adverse employment action.
We find that Professor Hill failed to plead that he suffered an adverse employment action. As acknowledged at oral argument, Professor Hill remains a tenured professor at DePaul. He was not fired. He was not suspended. He was not demoted or reassigned. And his pay was not reduced. Professor Hill has pled no tangible loss, only amorphous speculation that his prospects are diminished.
We observe that Professor Hill characterizes the Faculty Council's resolution as a censure and DePaul disputes that characterization. We need not resolve the question but note that even if we were to regard the resolution as a censure, we would find that a censure alone is not a materially adverse employment action. "[W]here a censured employee retains his job and does not suffer any loss of pay or rank, any alleged harm to his stature or earnings prospects is purely speculative."
