Labor & Employment Law Daily Holocaust-denying high-school teacher can’t revive race, religious bias claims
Monday, April 27, 2020

Holocaust-denying high-school teacher can’t revive race, religious bias claims

By Kathleen Kapusta, J.D.

Although he claimed the principal made disparaging remarks about his race—he was of Egyptian descent—he was not able to show that his teaching of anti-Semitic views to his class was a pretext for discrimination that led to his termination.

While, at times, “there are nuances that arise from history that create equivocation in analyzing how, why, and when certain historic events have occurred,” there “are no nuances to be discerned regarding the Holocaust,” wrote the Third Circuit, affirming summary judgment against the Section 1981 and New Jersey Law Against Discrimination (NJLAD) claims of a high school history teacher fired for teaching anti-Semitic views to his students. Although the teacher, who was of Egyptian descent, claimed he was wrongfully terminated based on his race, ethnicity, and religion, he failed to show the district’s stated rationales were pretextual. Nor was he able to convince the appeals court to revive his hostile work environment, defamation, or First Amendment retaliation claims (Ali v. Woodbridge Township School District, April 22, 2020, Greenaway, J., Jr.).

Holocaust denial. Nine months after the teacher started working, an English teacher told the history department supervisor her students were claiming that “Hitler didn’t hate the Jews” and that the Holocaust death count statistics were “exaggerated.” They got this information, she reported, from their history teacher. Further, there was evidence that his students embraced Holocaust denial theories, with one writing: “I think that what they claim happened in the concentration camps did not really happen. What I do believe however is that they had a much easier and more enjoyable life in the camps. Even though they were not at home, they felt like they were.”

9/11 lesson. Around the same time, as part of a lesson on the 9/11 terrorist attacks, the teacher posted links to articles from the Middle Eastern Media Research Institute (MEMRI), including “Article in Saudi Daily: U.S. Planned, Carried Out 9/11 Attacks—But Blames Others for Them” and “Egyptian Daily: U.S. Planning 9/11 Style Attack Using ISIS in Early 2015—Like it Did Using Al-Qaeda in 2001.” Those articles, which were linked to the teacher’s school webpage, contained links to other articles and video clips, including a link reading: “Saudi Scholar Abdailah Al-Yahya: The Jews are Like a Cancer, Woe to the World if they Become Strong.”

Fired. When a reporter questioned the links and articles, the district superintendent responded that the district would investigate and “if warranted the teacher [would] be disciplined severely.” That same day, the school principal directed the teacher to remove the links from the school’s website. The following morning, the teacher was terminated.

Lower court proceedings. He subsequently sued, claiming the district violated the NJLAD and Section 1981 by terminating him based on his race, religion, or perceived religion, and by subjecting him to a hostile work environment. He also alleged that the district violated his rights to free speech and academic freedom under the First Amendment and made statements to the press that defamed him. The federal district court granted summary judgment against all of his claims.

NJLAD and Section 1981 discrimination claim. On appeal, the Third Circuit noted that the district proffered three nondiscriminatory reasons for firing the teacher: (1) he disseminated links to anti-Semitic online articles through the school’s official channels; (2) he expressed no remorse for this conduct; and (3) he had a history of teaching Holocaust denial theories to his students. Although the teacher argued that the principal’s approval of his lesson plan after having seen the MEMRI articles cast doubt on the district’s first rationale, this approval, said the court, did not preclude the district from terminating the teacher for posting the links or raise an inference that the district’s rationale was pretextual. Further, the superintendent’s statement to the reporter that the teacher would be severely disciplined showed the district planned to discipline him based on the posting of the links, not for discriminatory reasons.

Nor was there any evidence showing the second and third rationales were pretextual or that racial or religious discrimination played a role in the termination decision. The teacher did not deny that he never expressly apologized for his conduct and there was evidence showing that not only did he permit conspiracy-theorist and Hitler-apologist presentations in his class, he encouraged these opinions. Accordingly, the court affirmed summary judgment against these claims.

NJLAD hostile work environment claim. Turning to the teacher’s hostile work environment claim, the court first found his assertion that the principal, superintendent, and several teachers had called him anti-Semitic, unpatriotic, and a conspiracy theorist bore a “tenuous relationship” to his race. A closer question, said the court, was whether alleged remarks by the principal made prior to the termination meeting—twice greeting him with “Hey Arabia Nights” and “Hey, Big Egypt,” and calling him “Mufasa” or “Mufasa Ali” based on his middle name, Mostafa, and a character from the Lion King—were sufficiently severe or pervasive.

While these comments were offensive, they were not severe enough to alter his working conditions, said the court. “There is no evidence that [the principal] made these comments in the presence of other employees with ‘an attitude of prejudice that injects hostility and abuse into the working environment’ or that any of them were as severe as the use of an unambiguous racial epithet.” Further, because they were isolated, they were not so pervasive as to alter his working conditions.

State law defamation/privacy claims. The teacher also claimed that comments made by the superintendent to the reporter—including that “[i]t’s upsetting that somebody would distribute [the conspiracy theory messages in the MEMRI articles]” and that there was “no excuse” for posting the MEMRI articles were defamatory. Disagreeing, the court found these were nonactionable statements of opinion. And for the same reason, the superintendent’s comment that the posting of the MEMRI articles and anti-Semitic statements and 9/11 conspiracy theories were “not something the district agrees with in any way” was also not subject to liability. In addition, the superintendent’s statement that the district took “swift action” to remove the links and that “the teacher [would] be disciplined severely” if warranted was not defamatory, as it was not false. Nor did it constitute false light/invasion of privacy.

Section 1983 defamation claim. Affirming summary judgment against the teacher’s Section 1983 defamation claim, the court noted that he alleged only damage to his reputation without any concurrent violation of his constitutional rights and, since simple defamation alone is not a protected interest under the Due Process Clause, he could not recover under Section 1983.

First Amendment claims. Finally, while he alleged that posting links to MEMRI articles containing “alternative views” on the 9/11 attacks was protected under the First Amendment, the court pointed out that teachers “do not have a protected First Amendment right to decide the content of their lessons or how the material should be presented to their students.”

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