Jewish Teacher Sued Portland Public Schools + Union for Discrimination Over Colleagues' Anti-Israel Speech

From yesterday’s Report and Recommendation by Magistrate Judge Jeff Armistead in Doe v. Portland Ass’n of Teachers, Doe’s allegations:

Doe was born in Israel and takes his Jewish religious faith and ethnic heritage seriously. For Doe, the State of Israel is essential and integral to his devout religious faith. Although Doe immigrated to the United States, he maintains close ties to Israel and his family there. In the 2023-24 school year, Doe worked for PPS [Portland Public Schools] as a high school math teacher.

When he started working for PPS, he chose not to become a dues-paying member of PAT [Portland Association of Teachers], exercising his First Amendment right not to support union political speech and public sector collective bargaining. Nevertheless, because Doe is a PPS teacher, PAT is his exclusive representative by way of Oregon’s Public Employee Collective Bargaining Act (PECBA) and the collective bargaining agreement (CBA) PAT has with PPS….

Curricula. Doe alleges that PAT collaborates with Oregon Educators for Palestine (OEP) in its publications, including by co-publishing a guide called “Teach Palestine!” The guide references resources for teaching about Palestine, “encourages teachers to use their classroom to teach anti-Isreal views[,] and includes detailed curricula recommendations for pre-K through high school.” Among the recommended resources in the “Teach Palestine!” guide is “Teaching While Muslim,” which includes the statement “75 years ago, a lot of decision makers around the world decided to take away Palestinian land to make a country called Israel. Israel would be a country where rules were mostly fair for Jewish people with White skin” and encouragement to make signs that include the slogan “Free Palestine.”

The “Teach Palestine!” resource guide also includes “Let’s Go to Palestine.” That lesson—directed at elementary school—includes the statement “Palestine is currently under a brutal occupation by Israel. We pray for a truly free Palestine so that the Palestinians can prosper and we can all visit freely.” Also recommended in the guide is “Handala’s Return,” which includes the statement: “A group of bullies called Zionists wanted our land so they stole it by force and hurt many people.” The “Know Your Rights!” guide, also co-published by PAT and OEP, includes references to CBA provisions that protect teachers in teaching what are, according to Doe, anti-Israel views.

Displays. Doe alleges that, with PAT’s encouragement, teachers at Doe’s school wore clothing that included pro-Palestine messages, such as “Free Palestine,” and “From the River to the Sea.” School administration also allowed posting of Palestinian flags, print-out maps of Palestine that eliminate Israel, and other symbols and slogans throughout the school. The displayed flags and other symbols were in common spaces such as hallways, the library, as well as shared classrooms. In Doe’s view, the “placement was intentional so as to appear to be an expression of the community and school rather than any individual.”

Prayer. A teacher “led an on-campus morning meeting that he designated as a ‘prayer circle’ to support Palestine.”

Organizing and Political Activities. PAT collaborates with OEP in its publications, including by co-publishing the “Know Your Rights!” guide—a document “developed in response to the censorship, discrimination, and harassment” that PPS staff experienced when teaching or supporting pro-Palestine views. PAT’s social media accounts follow OEP, which organizes events and speech activities in support of Palestine and against Israel and which is visible to the public as well as members of PAT. OEP used social media to promote May 15 as “Nakba Day,” for instance. It stated, “This Nakba Day, we call on educators across Oregon to wear your kufiya [sic], pins, and “From the River to the Sea, Palestine Will Be Free” shirt to school or work!” On its own social media channels, PAT announced a “students for peace” walkout on March 15, 2024, with a rally at PAT headquarters that included anti-Israel expression.

Doe also alleges that PAT endorses candidates who are vocally anti-Israel and pro-Palestine, including then-candidates Raschelle Chase-Miller and Jorge Sanchez Bautista, both of whom have used social media to promote anti-Israel messages. On May 28, 2024, PAT held informational sessions for teachers to “[l]earn about your rights to teach and advocate for Palestine within Portland Public Schools” at PAT Hall.

PAT Member Conduct. PAT members and representatives allegedly “took coordinated, politically charged actions” while knowing or disregarding the effect they would have on Doe, including posting on social media that staff should wear pro-Palestinian clothing and should post pro-Palestinian messages through the school. In March 2024, Doe “was physically intimidated by a colleague who physically blocked him from entering the copy room to use the copy machine.” The colleague was “vocal about her anti-Israel views.” Doe also alleges that other PAT members spread rumors about Doe and falsely blamed and accused him of various things….

Doe also takes issue with PPS, alleging that it discriminated against him and violated his First Amendment rights. Against PPS, Doe alleges the following:

• “[t]he school’s policy is that every poster or expressive item displayed in the school’s common areas, such as a hallway, has to receive approval from administration. Thus, any display in these areas was with the explicit or implicit permission of the school administration.”
• “School administration allowed posting of Palestinian flags, print-out maps of Palestine that eliminate Israel, and other symbols and slogans throughout the school.”
• “The displayed flags and other symbols were in common spaces such as hallways, the library, as well as shared classrooms. The placement was intentional so as to appear to be an expression of the community and school rather than any individual staff person.”
• Although Doe brought his concerns to PPS, his school’s administration refused to remove pro-Palestine symbols.
• “When he asked school administrators if he could display a flag of Israel or symbols supporting Israel’s right to exist, school administrators denied Plaintiff’s request telling him that an Israeli flag or related symbols would be too disruptive.”
• “Because it only allowed pro-Palestinian flags, symbols, and messages, the school failed to maintain any kind of viewpoint neutrality on this issue.”

Doe asserts that PPS created a hostile work environment in its religious discrimination, primarily by making Doe’s school “a forum for one-sided, anti-Israel rhetoric.” As a result of that hostile work environment, Doe experienced a “severe recurrence” of his post-traumatic stress disorder (PTSD) which forced him to take a leave of absence and undergo medical treatment during the summer of 2024.

Doe alleges that PPS’s discriminatory conduct continues because it has failed to resolve or respond to his complaints, failed to take measures to curb the hostile work environment, and subjected him to an investigation based on false accusations. Although PPS transferred Doe to another school for the 2024-25 school year, Doe asserts that he continues to face hostility because of PPS’s failure “hold individuals to account,” which means that he cannot attend district-wide events because he might encounter those colleagues there.

Doe also contends that PPS’s discrimination is ongoing because, as a result of PPS’s “refusal to clarify the record,” he continues to be “blamed for incidents that did not occur.” For instance, in May 2025, Doe had to correct one of his new colleagues when they asked him “whether it was true that he was suspended for removing Palestinian flags from all the classrooms.” …

The report recommended rejecting Doe’s claims “that PAT’s exclusive representation violated his First Amendment right to free association by forcing him to associate with expression with which he disagrees, and which betrays his deeply held religious and moral beliefs”:

The collective bargaining system [upheld in Minn. State Bd. for Comm. Colleges v. Knight (1984)] is no different than PECBA in any way that matters to Doe’s constitutional challenges. Doe, who is not a member of PAT and does not have to pay PAT membership dues, has not had his associational rights impaired. And Knight extends, as this court sees it, to First Amendment rights generally. Knight (“The state has in no way restrained appellees’ freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative. Nor has the state attempted to suppress any ideas.”). That Doe specifically challenges his right to freely exercise his religion is of no moment in this context. Like the freedom to associate and freedom to speak, rights that are unburdened by exclusive representation, so too is Doe’s freedom to practice his religion—PAT’s exclusive representation in no way “forces” Doe to “tacitly approve” PAT’s beliefs.

The report also recommended rejecting Doe’s claim that PPS unconstitutionally discriminated against his viewpoint:

Does allege in Claim 3 that PPS allows expression of pro-Palestine, anti-Israel views but disallowed his request to promote pro-Israel views, and that by doing so (the One View Conduct), PPS applied its rules on speech and expressive activity in a viewpoint-based manner….

“When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” In Downs v. Los Angeles Unified Sch. Dist. (9th Cir. 2000), the Ninth Circuit held that materials posted on school bulletin boards constituted government speech because only school employees could access the bulletin boards, the bulletin boards were the property of the school, and the school principal oversaw (and thus implicitly approved) the posted materials. That implicit approval was equivalent to the school itself speaking, and when the school principal removed a competing bulletin board put up by a teacher with opposing views, that “explicit rejection” was equivalent to the school “choosing not to speak.”

Doe alleges that it is PPS’s policy “that every poster or expressive item displayed in the school’s common areas, such as a hallway, has to receive approval from administration” and thus any displays in the school’s common areas required PPS’s “explicit or implicit permission.” Given that Doe alleges that the One View Conduct is approved by PPS, the viewpoint challenged by Doe is attributable to PPS….

The report likewise recommended rejecting Doe’s claim that PPS’s actions unconstitutionally established religion:

[T]he Curricula and Display allegations are not a violation of the Establishment Clause because they can be regarded as geopolitical or political expressions that happen to align or harmonize with religious beliefs. That is, a policy or conduct does not violate the Establishment Clause “merely because it ‘happens to coincide or harmonize with the tenets of some or all religions.’” … Even for the resource guide “Teaching While Muslim,” which Doe alleges is sectarian, he fails to allege specifically what content in the guide advanced the Muslim faith rather than a political viewpoint that can be shared by Muslims and non-Muslims alike.

As for the Prayer allegation, its critical deficiency is that it fails to satisfy Iqbal pleading standards. The allegation merely states that a “teacher led an on-campus morning meeting that he designated as a ‘prayer-circle’ to support Palestine.” That cursory allegation omits any facts that would allow the court to conclude whether the “meeting” or “prayer-circle” was an instance of the unnamed teacher crossing the line from “protected private expression” to “impermissible government coercion.” Put differently, prayer is not categorically prohibited in schools because the Supreme Court has “long recognized … that secondary school students are mature enough to understand that a school does not endorse, let alone coerce them to participate in, speech that it merely permits on a nondiscriminatory basis.”

The report recommended rejecting Doe’s hostile work environment harassment claim against PPS, partly because of the statute of limitations, but partly for broader reasons:

Doe fails to plausibly allege that PPS’s conduct was “sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive work environment.” … Although the court does not doubt Doe’s subjective perception that his workplace was hostile and conflicted with his religious beliefs and identity, the occurrences alleged by him do not rise to the baseline of pervasiveness and severity that the Ninth Circuit has set….

First, PPS’s alleged conduct is part of a contentious geopolitical debate in which it is not settled whether the views Doe takes issue with are antisemitic or, rather, protests against the actions of the Israeli government toward Palestinians. To adopt Doe’s argument that the environment at his school was objectively offensive enough to alter his work conditions is to conflate Doe’s subjective belief with the requirement that the work environment was objectively hostile…..

Second, Doe does not allege, or plausibly allege, that the conduct he finds offensive was directed at him. Significant [in past precedents] was that much of the alleged conduct was not directed at the plaintiffs…. Offensive comments purposely directed at an employee are by degrees more severe than comments overheard first-hand or second-hand, or in this case expressions concerning a geopolitical dispute….

And the report recommended rejecting Doe’s discrimination claim against PAT, again largely for statute of limitations reasons, but also because of this:

[Doe] asserts that, in the spring of 2025, PAT publicly endorsed two school board candidates, on social media and through a meet-and-greet, who are “vocally anti-Israel and pro-Palestine.” PAT responds that imposing civil liability for a public endorsement would violate its First Amendment rights. The court agrees. See Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) (“Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment.”).

The endorsement and social media posts were not directed at Doe, nor does Doe allege that he was required to attend the meet-and-greet. In other words, PAT’s endorsement sought to “disseminate a message to the general public,” rather than “intrude upon the targeted [listener] … in an especially offensive way.” See also Rodriguez (holding that “a college professor’s expression on a matter of public concern, directed to the college community” could not “constitute unlawful harassment” where its “offensive quality was based entirely on [its] meaning, and not on any conduct or implicitly threat of conduct that [it] contained”)…. Doe cannot rely on PAT’s endorsements to allege an ongoing hostile work environment and timely Title VII violation.

I hope to put up a post soon on the Magistrate Judge’s decision to allow Doe to proceed under a pseudonym.

Misha Isaak, Megan S. Bradford, and Dominik K. Mackinnon (Stoel Rives LLP) represent PPS and related defendants. Scott A. Kronland and Matthew J. Murray (Altshuler Berzon LLP) and Karen O’Kasey (Hart Wagner LLP) represent PAT.

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