The U.S. Started Investigating a Professor’s Pro-Palestine Speech. Then She Was Fired.

Last week, Maura Finkelstein made news when she publicly said that Muhlenberg College had fired her from her tenured associate professor position for her pro-Palestine speech.

Finkelstein, who is Jewish herself, said a panel of faculty and staff recommended axing her over an Instagram repost that told readers not to “normalize Zionists taking up space” and called Zionists “genocide-loving fascists” who shouldn’t be welcome “in your spaces.”

Major academic freedom advocacy groups said it was the first case they’d heard of in which a tenured faculty member was fired for pro-Palestine or pro-Israel statements, and they lamented the precedent it could set for academic freedom. Muhlenberg spokespeople didn’t answer questions about the situation then, saying, “The college treats matters of this nature as confidential.”

But new Education Department documents released Monday shed light on events that appear to have spurred the college’s investigation of Finkelstein and may have contributed to her firing. Last week—the day after The Intercept broke the news of Finkelstein’s firing—Muhlenberg agreed to resolve a federal investigation into whether the institution has complied with Title VI of the Civil Rights Act of 1964. That part of federal law prohibits discrimination based on, among other things, shared ancestry, which includes antisemitism.

The documents say the college received eight shared ancestry complaints about Finkelstein’s speech online and in the classroom. “Students had reported to the college significant anxiety and fear resulting from the Professor’s comments both during class and in social media, impacting the students’ access to education,” lawyers from the department’s Office for Civil Rights wrote to the college.

The college didn’t say whether the federal investigation had any bearing on the decision to fire Finkelstein. Finkelstein, who said she was fired in May, is fighting that decision. Likewise, the department said last week’s news didn’t drive its decision to resolve the investigation.

“We release our resolution letters as soon as we secure a signed resolution agreement from the college,” Catherine Lhamon, an assistant secretary at the department who oversees OCR, told Inside Higher Ed Tuesday. “So we initiated negotiations with the college in August related to this investigation, and the college sent us a resolution agreement, and we announced it when that happened. It’s not related in any way.”

The Education Department has resolved seven investigations so far this year into reports of Title VI shared-ancestry violations, but this is the first resolved investigation that dealt mostly with faculty speech. The documents provide a further glimpse—but not a clear-cut one—into how OCR expects colleges to deal with complaints of violations of Title VI.

OCR has consistently said that colleges must assess whether a hostile environment exists on campus for students or student groups. A hostile environment is one that “limits or denies a person’s ability to participate in or benefit from a recipient’s education program or activity.” Determining whether such an environment exists, then taking actions to address it and prevent it from recurring, are core obligations for colleges and universities under Title VI. The agency, though, has been less prescriptive in how it expects institutions to respond to hostile environments and whether firing a professor is warranted.

Tyler Coward, lead counsel for government affairs at the Foundation for Individual Rights and Expression, said that the Muhlenberg agreement is just the latest in a string of OCR resolutions that show “OCR is putting institutions between a rock and a hard place”—to either adopt what Coward said are unconstitutional standards policing speech or risk their federal funding. He said OCR is telling institutions, “You must now censor.”

The OCR investigation was hanging over Muhlenberg as it was making decisions about how to handle the complaints against Finkelstein and related to her employment. Finkelstein said she was suspended from campus a week after Muhlenberg said it learned of the OCR complaint on Jan. 16.

And the investigation is still hanging over the college while Finkelstein is appealing her firing. The OCR, as part of the resolution agreement, has demanded reports on how the college is handling Title VI complaints going forward and the results of its investigation into the professor. (The OCR documents don’t name Finkelstein but identify her position and link to an online petition that demanded her firing.)

Lhamon said that the department didn’t ask or demand that the college fire Finkelstein—it didn’t even conclude whether there was a hostile environment for Jews on campus. Lhamon said she didn’t know whether Finkelstein had actually been fired, saying that she “read news reports about it.”

The OCR letter, dated Monday, says that, while the college told OCR it had begun investigating Finkelstein over the Instagram repost, the college hasn’t provided OCR with any information on that investigation.

“I don’t have a view about the college’s personnel decisions,” Lhamon said. When asked whether Finkelstein being fired would itself create a hostile environment for Finkelstein and other anti-Zionist Jews on campus (Finkelstein told Inside Higher Ed via email that “I was fired for being the ‘wrong’ kind of Jew. Which is actually antisemitic”), Lhamon said, “We would have to investigate, and we didn’t in this case.”

“We would have to look at the totality of the circumstances and all of the relevant facts,” Lhamon said.

In an emailed statement to Inside Higher Ed, a Muhlenberg spokesperson wrote that “as in past exchanges, we cannot comment on an ongoing, confidential personnel matter. We also would like to reiterate that Muhlenberg College remains steadfastly devoted to principles of academic freedom.”

Tom Ginsburg, director of the University of Chicago’s Forum on Free Inquiry and Expression, said, “There’s an outer boundary on speech that Title VI requires us to observe, and I think that’s good because it allows everyone to learn.” But, he said, even if Finkelstein did say everything alleged in the report, she still shouldn’t have been fired.

“If all these things alleged are true, the professor seems to be something like a left-wing Amy Wax, whose extracurricular speech makes it very hard for her to be an effective teacher for students of all backgrounds who might want to come to her class,” Ginsburg said, referring to the controversial University of Pennsylvania professor who was recently sanctioned but not fired. “But, just like Amy Wax, I don’t think she should be fired for that. I think it is a risk to academic freedom to take away someone’s tenure for something like that, even if it’s unprofessional behavior.”

The Report

The OCR letter says an unnamed complainant filed the complaint that led to the investigation over a Change.org petition from October that called for Finkelstein’s removal.

“The petition alleges that the professor glorified Hamas and vilified Israel; engaged in classroom bias, hate speech and targeted aggression to Jewish students; and engaged in cyberbullying students with her partner,” OCR wrote. But the letter discusses multiple complaints about Finkelstein’s speech aside from the petition; Finkelstein didn’t return requests for comment Tuesday.

OCR didn’t take a stand on whether Finkelstein’s speech amounted to antisemitism or created a hostile environment for students but did fault Muhlenberg for not determining whether her speech created a hostile environment in some cases.

“We identified concerns about their compliance with federal civil rights law, which is Title VI,” Lhamon said, “and those concerns include that they said that they had evaluated the operation of a hostile environment, but at most, they did that in two of eight reports related to this professor and didn’t in the others, and that’s a required component of the test.”

OCR lawyers wrote that “while the college could not discipline protected speech, the college nonetheless has a Title VI obligation to ensure that a hostile environment based on national origin does not exist or persist in its education program.”

“There’s lots of options that don’t include disciplining a speaker that do fulfill the Title VI obligation to ensure a nondiscriminatory environment,” Lhamon said. “And we are reasonably agnostic about which of the options a the school chooses, as long as they’re reasonably designed to redress that hostile environment.”

In one case that the college investigated, Muhlenberg officials determined that her conduct wasn’t “sufficiently severe, pervasive or offensive to deprive the student of an educational opportunity and the conduct implicated academic freedom issues.” The college resolved that complaint informally, “through a discussion with the professor.”

Brigid A. Harrington, a partner at Bowditch & Dewey practicing higher education and employment law, said the letter is “echoing what we’ve seen in a lot of the OCR resolutions, which is colleges, even if they can’t discipline speakers, have an obligation to address a hostile environment.”

“Academic speech is not like blanket immunity,” Harrington said. And she said she thinks the letter provides a clear lesson for colleges and universities.

“You have to do an investigation and make a finding about whether there was a hostile environment, regardless of whether they [the employee or student] can be disciplined,” she said.