Anti-Israel Advocacy at University Doesn’t Create Illegal “Hostile Environment” for Israeli Citizens or Jews

In the following is Judge Mark Hornak’s two-week old decision Newman v. Point Park Univ. (W.D. Pa. I think this is the best way to get the desired result.

Plaintiff Channa Newman, who was born in 1942, is Jewish, Israeli and Czech. She is currently employed by Point Park University in Pittsburgh as a professor. Plaintiff was a Point Park Professor and, at times, a Department Chair. She has been at Point Park since 1964. Plaintiff’s amended complaint contains 19 counts and covers 628 pages. It asserts a variety of statutory discrimination and retaliation claims against Defendant. Plaintiff alleges that Defendant harassed, discriminated and retaliated on Plaintiff’s basis of religion, race/national origin 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….

Although the court granted plaintiff permission to continue with her discrimination, retaliation claims and rejected her hostile atmosphere claim, it denied 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 alleges that Ross in particular held strong and differing views on the Israel/Palestine conflict. Ross and Hines are supporters of different political movements than Plaintiff. Plaintiff claims that Ross, in particular, held and advanced strongly differing viewpoints from those of Plaintiff on the Israel-Palestine conflict and its responses. 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 does not claim that Defendant made Plaintiff feel hostile by not protecting Plaintiff’s academic views or personal opinions from some of Defendant’s students and professors related to geopolitical issues. There is no evidence to support the claim that this was a “showing”. DefendantCreated an environment that is objectively hostile to work PlaintiffPlaintiff and a reasonable employee would have done the same. Plaintiff permitted controversial theories and ideas which directly conflict with Plaintiff’s views to be debated amongst professors or students, in an academic setting, or outside of the classroom. Plaintiff’s claims are a strong, fundamental disagreement with Drs. Ross and Hines mostly manifested in activities outside of school, such as participating in protests or posting content via social media. She also disagreed with Point Park student’s allegedly related views on these matters.

Plaintiff believes that Drs. Hines and others have advanced these ideas. Ross, Hines and Hines argue that Plaintiff is an outsider because she has strongly opposed viewpoints. In the Court’s judgement, however, it was too strong. This would render her ineligible for Title VII and make an academic and public debate invalid. Plaintiff also would have a right of veto to any other participants in this same debate. This would also make it mandatory that, as Title VII liability is a possibility, any opinions or speech held in that discussion and expressed by others that are inconsistent with Plaintiff’s viewpoint be modified to reflect Plaintiff’s position on these topics.

{Plaintiff claims, in essence, that she suffered discrimination in her workplace because of her Israeli citizenship and Jewish faith, as well as her support for Israel during the conflict between Israel and Palestine. The Plaintiff claims that Dr. Ross supports BDS and that students could also support it, given their participation in demonstrations. These allegations, as the Court noted, reflect an intractable disagreement among private individuals who hold different views on a subject that is undergoing intense 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 that were to be the case, then the practical consequences of the fair employment law claims invoked by Plaintiff will serve as a brake on academic and public debates over those contentious topics. It would tip the scales irrevocably in Plaintiff’s favor.

In summary, Plaintiff’s situation is likely to have the following consequences: advocacy of BDS (or any other criticism of Israeli actions) by faculty in academic employment is Per seIllegal discrimination based on race, religion and/or national origin creates an unfavorable work environment. This position is not supported by any case law.

While the Court acknowledges the contentious nature and arguments surrounding BDS, it also recognizes Plaintiff’s position that BDS activities, by definition, are anti-Semitic because of their existence and expression, as well as her argument that their presence in her workplace is unlawful discrimination. Plaintiff, for example, claims that Israeli and Jewish scholars and students have been discriminated against by BDS supporters in this country. She also cites scholarship in response to defendant’s motion to dismiss that asserts that BDS, in particular any academic boycott of Israel or Zionist voices from higher educational, is anti-Semitic and, therefore, she is subject to Title VII liability.

Plaintiff tried to label support for these topics or advocacy contrary to Israel’s position by Dr. Ross, Hines and some students at Point Park University as illegal discrimination. If true, those claims constitute hostile work environments and discrimination. There are no other cases in which this conclusion has been reached, and neither have the parties. Furthermore, the claims of students and academics on different campuses are irrelevant to this 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.}