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A recent Third Circuit case reminds us that facts do matter and that, at least in the world of public education, fictional "history" and conspiracy theories may not be foisted on the public in the guise of a history lesson. Ali v. Woodbridge Twp. School District, 957 F.3d 174 (April 22, 2020). In the Ali case, a non-tenured public high school teacher who taught in New Jersey in the Woodbridge High School from September 2015 to September 2016, was teaching Holocaust denial to his students and was posting links to articles on the school's website saying things like, "The Jews are like a cancer" and expressing conspiracy theories accusing the United States of planning a 9/11-style attack.

Ali's teachings became known when an English teacher reported to a supervisor that her students "were questioning historical accounts of the Holocaust, opining that 'Hitler didn't hate the Jews,' that statistics on the death counts were 'exaggerated'" and that the students got this information from their world history teacher. By the time Ali's teachings became known, they had already so influenced the thinking of at least some students that their written assignments were expressing doubts about the Holocaust, one student writing, "what they claim happened in the concentration camps did not really happen" and "Jews … had a much easier and more enjoyable life in the camps."

When the Board of Education fired Ali, he sued the school district, the board of education, and various individuals, claiming that his employment was terminated on the basis of his race and religion, and that defendants had violated his rights to free speech and academic freedom, among other claims.

The District Court rejected all of Ali's claims, awarding summary judgment to defendants and the Third Circuit affirmed in a unanimous three-judge opinion by Judge Joseph Greenaway. Most of the opinion is a straight-forward analysis and rejection of plaintiff's various other claims, i.e., NJLAD discrimination claim, hostile work environment, and defamation, but we focus on his First Amendment claim, also summarily rejected by the court, because it is refreshing, in today's environment of too-often fact-free discourse to see that falsification of facts—in this case, historical facts—will not always be tolerated and that the perpetrator may be made to suffer negative consequences.

Judge Greenaway began his opinion saying: "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. . . . Ali is not able to show that his teaching anti-Semitic views to his students was a pretext for discrimination that led to his termination."

The opinion ends by rejecting Ali's First Amendment challenge, stating well-established law that teachers in public schools do not have a protected First Amendment right to decide the content of their lessons, although, as made clear in other cases, they do have the Constitutional right to state their views outside the classroom. Although this holding is not new either in this Circuit or others, e.g., Edwards v. Cal. Univ. of Pa., 156 F.3d 488 (3d Cir. 1998) (school itself is deemed to be the speaker in deciding content-based curriculum), it seems worth noting at this time in history when public figures too often state "their own truth" and when we are seeing an alarming rise in anti-Semitic acts, that actual truth and actual facts do matter and that the teaching of this virulent brand of hate to impressionable young minds in our public schools will not be tolerated by school districts nor sanctioned by the Constitution. But we leave with the caution that the First Amendment equally allows some other school district to decide that some other version of history, or indeed of reality, is the truth that its teachers must teach.

Editorial Board member Harriet Derman recused from this editorial.