Anti-Israel/Anti-Zionist Speech Doesn't Violate School Board Members' Ethics Obligations, When Said in the Member's Personal Capacity as Professor
But speech sharply critical of Reps. Ilhan Omar and Rashida Tlaib, and of Sharia (and thus perhaps of traditionalist Islam) had been found, by the same commission, to be unethical.
From yesterday's decision in Siegel v. Aziz (N.J. Super. Ct. App. Div.) (by Judges Ronald Susswein and Lisa Perez-Friscia):
Defendant was elected and sworn in as a member on the Westfield Board of Education in January 2021. Her term ended in April 2024. Defendant is also a law professor at Rutgers Law School and her scholarship includes topics such as "Islam, Secularism [and] Human Rights, religion and race, Critical Race Theory, and Middle Eastern law and politics." …
[D]efendant and various professors throughout the country signed a letter titled "Palestine and Praxis: Scholars for Palestinian Freedom" (Letter). Plaintiff alleged in her complaint that the Letter advocates, inter alia, boycotting and imposing sanctions against Israel for its treatment of Palestinians as well as supporting student activism on university campuses.
On March 15, 2023, defendant "retweeted" a social media post stating, "Israeli protestors take to streets to safeguard master-race democracy[.] 'The protestors seek to beautify an Isreal that has always been nothing more than a predatory settler-colony that grants privileges to Jewish colonists[.]' [-]Joseph Massad" and included a link to an article from "middleeasteye.net" titled "Israeli protestors take to streets to safeguard master-race democracy."
On November 30, 2022, defendant retweeted a social media post stating:
Today, @alhaq_org and a coalition of Palestinian human rights organizations are launching a new landmark report that reclaims the current discourse on Israeli apartheid and examines its reality and origin as an integral part of Israel's settler-colonial regime.
Israeli #apartheid is a tool of Zionist settler #colonialism. What does this mean & what are the origins, logic & institutions of Israeli oppression of the Palestine people as a whole? All of this & more are discussed in our new report for @alhaq_org [website link][.]
On February 27, 2023, defendant retweeted a social media message and website link from the "Center For Security, Race and Rights" which stated "'[StandWithUs'] interest isn't in student well-being but rather to slander…Galvanizing racist, anti-#Arab and anti-#Palestinian tropes is not difficult in a post-911 era. StandWithUs just had to redact every name but mine and let racism/sexism do its job[.]'" Defendant added her own text, stating "Vilifying #Arab and/or #Muslim women has become the new strategy of #Zionist groups. #Islamophobia and #Orientalism is pervasive. For more, read The #RacialMuslim @BernieSanders @AOD @IlhanMN @RepRashia[.]"
On August 23, 2022, defendant tweeted a website link to an article titled "She was fired for being publicly pro-Palestine. One year later, no one is hirin[g]." Defendant added the text: "[a]thletic trainer was fired from Philadelphia's Agnes Irwin School for her pro-#Palestine stance."
Plaintiff filed an ethics complaint with the School Ethics Commission, which the SEC rejected:
[Defendant's] statements, while controversial and likely perceived as offensive and hurtful to members of the [d]istrict's Jewish community as well as to the Jewish community as a whole, did not relate to the business of the [b]oard and/or its operations, nor was there a nexus between the social media page and/or academic publication to her [b]oard membership. [Defendant's] social media posts were made from her personal professional social media account that did not reference her [b]oard membership.
In this circumstance, where the content of the speech lacks a connection to the [b]oard, and the posts were from a private social media account that does not mention or advertise [defendant's] position on the [b]oard, the lack of a disclaimer does not render [defendant's] conduct as being offered in an official capacity and pursuant to her official duties. Similarly, her participation in [the Letter] stemmed from her position as a law school professor, and did not otherwise relate to her [b]oard membership.
The appellate court agreed. First, it concluded that the SEC's interpretation of the statute wasn't inconsistent with the SEC's earlier decision in In the Matter of Leonard, which had censured a school board member for his personal Facebook page posts (removal wasn't considered there because his term was over and he hadn't run for reelection): Those posts had read:
Complainants alleged that on April 12, 2019, Respondent shared a Facebook post from the "Rant Nation with Graham Allen" site to his personal Facebook page. The shared post appears to link to a video purporting to show United States Representative Ilhan Omar. The post additionally contains a picture of Congresswoman Omar wearing a hijab – a head scarf worn by many Muslim women. In sharing the post, Respondent commented, "Terrorist….100%." Complainants further alleged that on April 19, 2019, Respondent shared a Fox News article dated April 19, 2019, entitled, "Rashida Tlaib calls for hunger strikes to shut down ICE" to his personal Facebook page. The post includes a picture of Congresswoman Tlaib, with a comment by Respondent stating, "My life would be complete if she/they die…."
Finally, on April 28, 2019, Complainants alleged that Respondent shared a photograph on his personal Facebook page of a doll, with a black eye, bruise on her chin and dressed in a hijab. The body of the photograph bears the following text: "Sharia Barbie [-] Comes with a jihab [(sic)], bruises and quran [-] Stoning accessories available for additional purchase."
The SEC in Leonard concluded:
Respondent's disparaging posts to social media at issue constituted conduct that undermined the public's trust in the Board and compromised the Board's ability to engage with the public. As ALJ Pelios discussed, Respondent's post had the potential to discourage members of the public, namely members of the Muslim community, to engage with the Board "given what may seem to be an apparent bias." As such, ALJ Pelios' determination is entirely appropriate.
But in Siegel v. Aziz, the SEC distinguished Leonard on the grounds that
The alleged statements in Leonard involved attacking individual members of the Muslim community, namely referring to a Congresswoman as a "Terrorist….100%" as well as stating "My life would be complete if she/they die…." The statements at issue in are not factually similar to the alleged statements in the present matter. Political speech criticizing Israel's policies and/or existence, while it may be offensive and distasteful, is not the same as a personal attack with calls for death.
And the appellate court found "no basis to disturb the SEC's determination":
Leonard is distinguishable from the present matter. Defendant's posts do not contain threats to the lives of individuals like the posts in Leonard. Relatedly, defendant's Letter called for pressuring academic institutions by calling for "[b]oycott, [d]ivestment and [s]anctions of Israel" as well as "[h]ighlighting Palestinian scholarship." Nothing in the Letter contain threats to individuals.
The court went on:
In Aziz v. Nikitinsky, No. EEC C56-22 [see here], the SEC provided guidance for analyzing social media-related ethics violations, stating "the [SEC] would like to explain the circumstances under which a school official may violate the Act when utilizing social media." The SEC specified:
Although social media activity by a school official can be regarded as action … , it is only when certain competent and credible factual evidence is proffered therewith that a violation can be substantiated.
As a general matter, a school official does not violate the Act merely because [they] engage[ ] in social media activity. Instead, the [SEC]'s analysis is guided by whether a reasonable member of the public could perceive that the school official is speaking in [their] official capacity or pursuant to [their] official duties … [which] turns, in large part, on the content of the speech. If the speech in question has absolutely no correlation or relationship to the business of the [b]oard and/or its operations and, therefore, could not possibly be regarded as a statement or position on behalf of the [b]oard (as a body), a school official will not violate the Act….
[In another decision, t]he SEC added that "how school officials conduct themselves outside the scope of their duties as school officials is best addressed at the time of election. It is the public, not the [SEC], who ultimately decides which individuals in their community are best suited to serve their students." … The SEC emphasized that defendant's posts were made from her personal professional social media account and did not mention her board membership. Further, the Letter stemmed from defendant's position as a law professor and "did not otherwise relate to her [b]oard membership." We see no basis upon which to disturb that conclusion….
I think there's much to be said for the view that elected officials should generally be free to speak without being suspended or removed (which are remedies the SEC is empowered to implement), and that the remedy for bad speech by such elected officials should be up to the voters. See, e.g., Bond v. Floyd (1966).
At the same time, I'm not sure that the SEC's decision in this case is quite that easy to reconcile with its decision in Leonard, which, recall, rested on the speech being potentially interpreted as showing "apparent bias." The condemnation of Israel in this case may likewise be interpreted as biased against Americans who are also Israeli citizens (of whom I think there are many). And the condemnation of Zionists may be interpreted as biased against Zionists, which of course many Americans are (even apart from whether it may be interpreted as biased against Jews).
Nor do I think that Leonard can be distinguished (as the SEC did in this case) on the grounds that it "involved attacking individual members of the Muslim community, namely referring to a Congresswoman." I'm not sure that harshly condemning a country or a belief system—in a way that might make citizens of the country (Israel) or adherents of the belief system (Zionism) worry about possible bias against them—is really that different from harshly condemning members of Congress in a way that might make those members' coreligionists worry about possible bias against them.
In any event, though, I think that the New Jersey appellate court's decision in Siegel v. Aziz is correct, even if I have my doubts about the SEC's decision in Leonard.
Matthew J. Giacobbe and Janice V. Arellano (Cleary Giacobbe Alfieri Jacobs, LLC) represent Aziz; Colin Klika, Deputy Attorney General, represents the Commission.