"Alleged Discrimination at the University of Oregon School of Law," by Prof. Ofer Raban

Ofer Raban, who is a professor at the University of Oregon School of Law (but who, even more clearly than usual for a law professor, is speaking on behalf of himself and not the law school), passed along this item. I have no direct personal knowledge of the matter, but I thought Prof. Raban's report was interesting and potentially important. I have tried to obtain statements for publication from the law school and the law review, but have not gotten any; naturally, if I do get contrary accounts or perspectives, I'd be happy to pass them along.

From Prof. Raban:

The University of Oregon, the state's flagship public university, is presently investigating a claim of discrimination against an Israeli professor by the Oregon Law Review. Several law school administrators apparently knew of the discrimination, and a high-ranking administrator had even approved it. The target of the discrimination holds an American law degree and has been teaching intermittently in the U.S..

The events unfolded in 2024, after an Oregon Law Review editor recommended the publication of an article written by the Israeli professor. Conceding the article's merits, a second law review editor rejected the recommendation because the author was a faculty member at an Israeli university. The law review management agreed, claiming that publishing the article would be perceived as an endorsement of Israel in the Israeli-Palestinian conflict—although the article dealt with environmental law and had nothing to do with that conflict.

When the original reviewer objected that this may amount to unlawful discrimination, the matter was taken to a high-ranking law school official. A meeting was held, and the official reportedly gave the green light to the discrimination. At least two law school administrators, possibly more, were aware of the stated basis for the rejection and connived in it. A concerned member of the law review (who did not attend the meeting) was told that the law school's administration had cleared the discrimination.

The allegations may involve violations of state and federal anti-discrimination statutes, violations of the state and federal constitutions, violations of the university and the law school's own policies and regulations, and infringements of federal policies, the policy of the Association of American Universities (of which the University of Oregon is a member)—and the university's own statement—regarding academic boycotts of Israel.

The basis for rejecting the article appears to constitute, at a minimum, discrimination on the basis of national origin (putting aside the related issues of discrimination on the basis of race, ethnicity, and antisemitism). Federal courts have long recognized discrimination by proxy—cases where "the defendant enacts a law or policy that treats individuals differently on the basis of seemingly neutral criteria that are so closely associated with the disfavored group that discrimination on the basis of such criteria is, constructively, facial discrimination against the disfavored group." Davis v. Guam, 932 F.3d 822, 837 (9th Cir. 2019). See also Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1160 (9th Cir. 2013) ("In a case of proxy discrimination the defendant discriminates against individuals on the basis of criteria that are almost exclusively indicators of membership in the disfavored group.")

Although the use of a proxy means that individuals who are not members of the protected class may be ensnared by the discrimination (say, American citizens who teach at Israeli universities), or that individuals who do belong to the protected class may not be ensnared (say, Israeli professors who teach in France), the lack of a perfect overlap makes no difference. Discrimination against a protected class need not be directed at the entire class (see, e.g. Bostock v. Clayton County, 590 U.S. 644 (2020); Rice v. Cayetano, 528 U.S. 495 (2000)); and "willingness to inflict collateral damage… does not cleanse the taint of discrimination; it simply underscores the depth of the defendant's animus." Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1160 n.23 (9th Cir. 2013). "The principal focus of [anti-discrimination statutes] is the protection of the individual [], rather than the protection of the minority group as a whole" (Connecticut v. Teal, 457 U.S. 440 (1982)).

The allegations may also support a finding of intent to discriminate on the basis of national origin—given the usual factors informing such determinations (the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decisionmakers (see Village of Arlington Heights v. Metropolitan Housing Development Corp, 429 U.S. 252 (1977)). Indeed the claim that publication of the article would amount to an endorsement of Israel in the Israeli-Palestinian conflict makes so little sense—and could have been so easily cured by a one-sentence disclaimer—that ill-disguised hostility to Israelis may provide a simpler and more accurate explanation.

The University of Oregon's Office of Investigations and Civil Rights Compliance has been investigating the matter since February, with little to show for it. To date, as far as we know, no action has been taken against any official at the law review or the law school, and the sole action by the university has been a muted request for anti-bias training for new members of the Oregon Law Review.

Unfortunately, open discrimination against Israelis is the unsurprising culmination of messages emanating from the highest levels at the University of Oregon. Like many other institutions, the University experienced anti-Israel demonstrations that included the by-now familiar "from the river to the sea" banners and other denials of Israel's right to exist. The University of Oregon's response to these protests has been a shameful capitulation. A 2024 agreement between the university and the protestors included the issuance of a statement by the University of Oregon President calling for a permanent ceasefire in Gaza (a position long advocated by Hamas); the creation of two new faculty positions (presumably tailored to the ideological preferences of the demonstrators); and a taskforce that would consider the university's economic divestment from Israel.

This February, four University of Oregon departments (Sociology, Anthropology, Religious Studies, and Women's Gender and Sexuality), along with one University Institute (the Global Studies Institute) and one academic center (the Global Justice Program) co-sponsored and paid for a visit to the university by a pro-Palestinian activist who denies Israel's right to exist (which passes for the same thing in some circles), had celebrated the October 7 atrocities, and has since declared that she stands by that sentiment.

To be sure, we haven't yet seen the official conclusions of the university's investigation; and an internal law school inquiry would hopefully follow suit. (The Law School is yet to conduct its own inquiry, and is presently awaiting the result of the University's investigation.) But given the ideological messages sent by the University of Oregon to its students, its faculty, and its staff, one can be scandalized, but not surprised, by what had transpired at its law school.