Education Institutions Grapple With Overlap of First Amendment and Anti-Discrimination Laws

March 15, 2024

Education institutions at both the K-12 and higher education levels have grappled with complex First Amendment and anti-discrimination issues since the events occurring in Gaza in October 2023. A new lawsuit in the U.S. District Court for the District of Maryland confirms that these controversies continue to pose litigation risk for educational institutions.

On Feb. 14, 2024, the Council on American-Islamic Relations sued Montgomery County Public Schools (MCPS) in the U.S. District Court for the District of Maryland, claiming that officials at the schools violated three teachers’ free speech rights by suspending them for speaking on Palestinian human rights.

The suit arose after teachers Hajur El-Haggan, Anike Robinson and Angela Wolf (the plaintiffs) were placed on administrative leave after other teachers and staff at the school expressed concern about Palestine-related messaging on plaintiffs’ clothes and in their email signatures. Some of these messages included phrases like “Free Gaza,” “Free Palestine” or “From the river to the sea, Palestine will be free.”

Plaintiffs alleged that their discipline was unconstitutional viewpoint discrimination, disparate treatment on the basis of ethnicity under Title VII and disparate treatment under Maryland state laws. Plaintiffs further claimed that MCPS’ decision to suspend them after they expressed support for Palestine and criticism toward Israel was not based on how they expressed their views, but instead specifically targeted the views they expressed, in violation of their First Amendment rights. Plaintiffs highlighted that other teachers had long been allowed to express their views on a range of topics, including racial justice and the war in Ukraine, but had not been suspended.

This Maryland lawsuit is just one of several First Amendment-related suits filed since the attacks of Oct. 7, 2023. For example, in November 2023, the University of Florida chapter of Students for Justice in Palestine (UF SJP) filed a lawsuit challenging an order promulgated by University of Florida’s chancellor and Gov. Ron DeSantis requiring state universities to deactivate the Palestinian rights student group altogether. The lawsuit argued that the order censored UF SJP in violation of the First Amendment and penalized student members based on viewpoint. On Jan. 31, 2024, the U.S. District Court for the Northern District of Florida denied UF SJP’s request for a preliminary injunction, finding that public statements from Chancellor Ray Rodrigues suggested that UF did not intend to enforce the order. The court also found that students failed to demonstrate a substantial likelihood of establishing injury-in-fact because they had not identified any facts suggesting that students had self-censored or continued to speak under threat of punishment in light of the order.

Similarly, in November 2023, a complaint filed in the Northern District of California on behalf of students at the University of California Berkeley School of Law alleged that Jewish students increasingly were targeted and harassed after the Oct. 7, 2023, events in Gaza. The complaint specifically alleged that Jewish students were physically assaulted by protestors and received hateful emails. The students also alleged that UC Berkeley improperly allowed student organizations to exclude certain students based on their support for Israel and/or Zionism, in violation of the university’s own anti-discrimination policies. They further alleged that the university’s failure to enforce its own policies created a hostile environment toward Jewish students in violation of Title VI of the Civil Rights Act of 1964. UC Berkeley filed a motion to dismiss the students’ complaint on Feb. 5, 2024. That motion remains pending.

While each of these suits addresses a unique set of concerns, they all serve as reminders to public educational institutions to be mindful of the potential overlap between First Amendment issues and other civil rights laws, such as Title VI and Title VII. They also serve as a reminder to school leaders that any internal policies regarding the treatment of certain student organizations or permitted speech on campus must be consistently applied.

For example, educational institutions should avoid instituting policies that target specifically named student groups, faculty interest groups or social causes, as this may implicate constitutional concerns. Educational institutions should review their policies regarding student and faculty speech carefully and should ensure that administrators understand the importance of handling student complaints and events consistently and in accordance with those policies.

McGuireWoods will continue to monitor developments in this space. Please reach out to any of the authors of this article if your educational institution faces these complex issues.