On April 22, 2020, the Third Circuit Court of Appeals unequivocally rejected Holocaust denial and 9/11 conspiracy theories to uphold a public school district's right to prohibit inappropriate teaching in its classrooms.

Judge Joseph Greenaway began Ali v. Woodbridge Township School District, ___ F.3d ___, 2020 U.S. App. Lexis 12906 (3rd Cir. 2020), with a strong statement denouncing the presentation of "alternative facts" to a class of impressionable ninth graders:

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. It is a historic fact. That tragic event in human history along with the 9/11 terrorist attacks lie at the center of this matter.

Our firm was pleased to have successfully defended the Township of Woodbridge School District in this employment discrimination case.

The plaintiff, Jason Mostafa Ali, had been hired as a history teacher by the Woodbridge Board of Education. Ali's family had roots in Woodbridge and was fairly well-known within the community. He had attended Woodbridge schools as a student. The superintendent had been his football coach; Ali also knew the principal of Woodbridge High School before he was hired. Both the principal and the superintendent recommended that the Board hire Ali.

In the spring of Ali's first year as a teacher, the administration received some disturbing reports from the English department. In connection with the Holocaust education required by New Jersey statute, ninth grade students had been reading the book "Night" by Nobel Peace Prize winner Elie Wiesel. This is a harrowing account of the author's experience in a Nazi concentration camp. English teachers reported that their students were challenging facts about the Holocaust and the veracity of Wiesel's memoir. When questioned, the students stated that their challenges were based on questions raised by Ali. Ali's supervisor told him that he was not to teach anything other than the official account of the Holocaust. He agreed to comply.

The following September, an issue arose concerning Ali's lesson plan for required teaching of the September 11 attacks. Ali told his supervisor that he intended to use certain articles from an organization known as MEMRI (Middle East Media Research Institute), a website that provides translations of articles not otherwise available to English-speaking audiences. While MEMRI was a legitimate organization that did not advocate a position contrary to the 9/11 curriculum, the articles he selected cited sources in Egypt and Saudi Arabia that described the September 11 attacks as an "inside job" by the United States. The MEMRI website where the articles were posted, linked to Ali's web page for his students to see, also prominently displayed a link to an article bearing the headline "Saudi Scholar Abdailah Al-Yahya: The Jews Are Like A Cancer, Woe To The World That They Become Strong."

The outcry over Ali's teachings that fall reached the press before it reached the school administration. A reporter from a local television station confronted the principal and the superintendent, both of whom expressed concern. Ali was directed to remove the link to MEMRI from his web page.

The next day Ali met with the superintendent, the principal and his supervisor. The superintendent did not plan to terminate Ali if he expressed an understanding that what he had done was wrong and that it would not occur again. Not only did Ali refuse to apologize; he defended his actions as justified because he was teaching his students to think independently. He was then summarily terminated.

Ali filed suit for discrimination, claiming that he was terminated because of his Egyptian background, his ethnicity, his perceived religion and/or the exercise of his First Amendment rights. He cited comments allegedly made during the meeting and jokes the principal had made over the years, suggesting that he was subjected to a hostile work environment and that his termination was motivated in whole or in part by bigotry. He also claimed that the principal and superintendent had defamed him by telling a reporter that the Woodbridge School District did not agree with the anti-Semitic statements or conspiracy theories channeled through the MEMRI website, and that the administration may take disciplinary action against Ali.

Discovery in the case disclosed papers of Ali's students which demonstrated the extent of the damage his conspiracy theorizing had inflicted. One student wrote that "Adolf Hitler … is looked at as a bad guy but in reality brought Germany out of its great depression." Another wrote that "what they claimed happened in the concentration camps did not really happen …. Jews … had a much easier and more enjoyable life in the camps."

The Third Circuit opinion did not quote some of the most alarming statements of students, one asserting that the Jews had "brought pornography to Germany," another asserting that Jews had caused the Great Depression in Germany and "deserved to die." When confronted with these papers during his deposition, Ali stated that he was proud of his students for engaging in "independent research." He also persisted in espousing the 9/11 conspiracy theories as worthy of his students' consideration.

While the legitimate, non-discriminatory reason for Ali's termination was somewhat obvious, in response to his effort to characterize himself as a champion of "academic freedom" we retained two distinguished academics. One helped develop New Jersey's Holocaust curriculum and the other was a college education professor responsible for training history teachers. They pointed out that the offensive student papers all contained quotes from a Hitler apologist documentary called "Hitler-The Greatest Story Never Told." It was likely that the students did not find this documentary on their own; they must have been directed to it.

The education professor also made important points about MEMRI and conspiracy theorists in general. MEMRI is a legitimate organization. Its board of directors includes distinguished figures from government, media, law and academia around the world. Its purpose is to translate articles from the Middle East (as well as other regions) so that ideas can be presented for intellectual debate in a manner that will inform public opinion and policy. MEMRI does not endorse any of the articles it posts. Its purpose is simply to inform the world as to what is being said in other languages.

These articles can be a useful teaching tool in the right hands and in the right setting, such as in high level college or graduate courses. Their use is clearly inappropriate for ninth grade students. In the hands of a conspiracy theorist attempting to indoctrinate young students, such "alternative views" are simply dangerous. As the professor noted, high school students are naturally drawn to conspiracy theories because they believe that they are inching closer to a hidden truth. In social studies education, as students grow older and capable of more complex thinking, the difficult and morally murky realities of history warrant exploration. What may be appropriate for a graduate level history course is not appropriate in ninth grade.

Citing to work by Richard Hofstadter, a Pulitzer Prize-winning historian from Columbia University, the defense expert pointed out that the very nature of a conspiracy theory is an absence of evidence. Those controlling the conspiracy ensure that other people cannot trace their tracks. Conspiracy theorists are often powered by feelings of resentment, exclusion and anger.

Following the close of discovery, Judge Arleo of the U.S. District Court granted summary judgment. The Third Circuit affirmed in a published decision.

In one sense this case is a rather pedestrian application of the well-worn McDonnell Douglas burden-shifting approach to summary judgment motions in employment cases. The Woodbridge School District clearly had a legitimate basis for terminating Ali, and the evidence submitted by Ali in an effort to demonstrate pretext to mask a discriminatory motive was weak.

Yet the decision includes broader lessons, which the Third Circuit apparently viewed as warranting publication. Public school teachers do not have free rein under the First Amendment to teach whatever they want in a classroom. Schools have a legitimate interest in maintaining control over curriculum. A school district also has the right to discipline a teacher who abuses his power over impressionable minds to defeat the designated curriculum. As Judge Greenaway suggested at the outset of the opinion: while history may be nuanced, some aspects of history—such as the Holocaust and 9/11—are not subject to question, and certain truths cannot and must not be whitewashed or undermined.

Fredric Paul Gallin and Eric Harrison are partners at Methfessel & Werbel. Gallin handles complex civil litigation, and Harrison manages the firm's Employment and Civil Rights team. They were assisted in litigation of the Ali matter by counsel Leslie Koch, who specializes in employment law.