A philosophy lecturer recently revived his First Amendment claim against a state university that refused to rehire him because of some of his controversial off-campus political comments and activities that the school said were disruptive to its educational mission.
A three judge panel of the Third Circuit Court of Appeals found that the disruption claimed by the New Jersey Institute of Technology (NJIT), if there was any at all, was minor and did not justify its decision to not renew Jason Jorjani’s contract as it had done for the previous two years. The appeals court reversed a lower district court that had sided with NJIT.
The case arose after the New York Times in 2017 published a contributed opinion column (Undercover with the Alt-Right) that included comments Jorjani made to a person posing as a graduate student and remarks Jorjani made in a video at a conference. In his remarks, Jorjani charactered “liberalism, democracy and human rights” as “ill-conceived and bankrupt sociopolitical ideologies.” He predicted “we will have a Europe, in 2050, where the banknotes have Adolf Hitler, Napoleon Bonaparte, Alexander the Great. And Hitler il be seen like that: like Napoleon, like Alexander, not like some weird monster, who is unique in his own category.”
The ruling by the federal appeal court was handed down September 8, two days before the assassination of conservative activist Charlie Kirk and before reports of some educators being targeted for posting about Kirk’s death or politics.
NJIT, a state school, cited additional concerns with other Jorjani off-campus remarks and certain political affiliations that he never disclosed to the university or students.
NJIT Reaction
Six days after the New York Times posted the article, NJIT sent a letter to Jorjani placing him on paid leave, claiming that the article “caused significant disruption at the university” that NJIT believed would “continue to expand,” and that the article revealed “association with organizations” that Jorjani did not disclose on his outside activity form. The letter advised Jorjani that NJIT planned to investigate whether he had violated university policies or state ethics requirements.
The NJIT faculty followed suit, calling “NJIT a university that embraces diversity and sees that diversity as a source of strength and finding what it called Jorjani’s racist pronouncements to be morally repugnant and have no place on the NJIT campus.” The school’s history department demanded Jorjani’s termination, asserting his “published beliefs create a hostile learning environment for students of color in particular.”
School officials also took to the school newspaper, writing in part: “On current events, we strongly object to the use of pseudoscience to support racist ideology. In particular, we object to attempts to use details related to human evolution to support eugenics and white supremacy. Such opinions have been expressed by Jason Reza Jorjani, who until recently taught some of our students in courses on science, technology and society.”
Jorjani maintained that the snippet of conversation that was in the New York Times article was “cut and spliced from many different parts of multiple conversations,” then “restitched together to falsely portray” his views as “extreme or sensational.”
During the time he was employed by NJIT, Jorjani spoke at conferences, formed Alt Right Corp. and co-founded a website (altright.com) to spread his philosophy. In one essay he argued that “human racial equality” is a “left- wing myth” and that a great “Promethean mentality” rests on a “genetic basis” which “Asians, Arabs, Africans, and other non-Aryan peoples” lack. The essay also argued that, through “genetic engineering” and eugenic “embryo selection,” Iran could produce great philosophers by “restoring the pre-Arab and pre-Mongol genetic character of the majority of the Iranian population within only one or two generations.” Jorjani did not discuss these outside associations with his students or colleagues, nor did he disclose them.
The law firm retained by NJIT to investigate whether Jorjani had engaged in practices “that resulted in a conflict of interest with his responsibilities toward NJIT” concluded he had, finding among other things that Jorjani “violated the New Jersey ethics code” by failing to disclose that he was a founder, director, and shareholder of the AltRight Corp. NJIT then elected to not renew Jorjani’s contract.
Jorjani Sues
Jorjani sued NJIT, arguing that his contract nonrenewal was retaliation in violation of his First Amendment rights of free speech and association. He also accused school officials of defamation for wrongly claiming that the controversial statements were “truly and accurately attributed” to him and for falsely implying that Jorjani himself was “full of racism, hatred and bigotry, and was unfit to teach at NJIT.” Jorjani has asked for $5 million on each of five causes of action plus legal costs.
In July 2024, U.S. District Judge William J. Martini of the federal district court for New Jersey granted NJIT’s motion for summary judgment, concluding that Jorjani’s speech was not protected by the First Amendment because NJIT’s “interest in mitigating the disruption caused” by Jorjani’s speech outweighed Jorjani’s “interest in its expression.”
In appealing before the three-judge appeals panel this past July, Jorjani’s attorney Frederick C. Kelly III defended Jorjani’s comments on race by noting that the record shows “a longstanding and legitimate debate on why the races differ in average intelligence.” Kelly argued that NJIT and the district court had exaggerated any disruption caused by Jorjani. “This disruption here is not worthy of a university,” Kelly told the court, noting that the school said it had received fewer than 50 emails about the controversy.
Appeals Court
On September 8, the Third Circuit appeals court ruled that the district court erred when it concluded that Jorjani’s speech was not protected by the First Amendment. The appeals court concluded that on balance, the disruption NJIT described did not outweigh even minimal interest in Jorjani’s speech. Referencing the three-pronged Pickering test (Pickering v. Bd. of Ed.), the appeals court said that a public employee’s speech is protected if “the employee spoke as a citizen,” his “statement involved a matter of public concern,” and “the government employer did not have ‘an adequate justification for treating the public’ as a result of the statement he made.”
The appeals court noted that the U.S. Supreme Court has uniformly applied Pickering to speech by. public employees, even when made during an employee’s spare time. Since the parties agree that Jorjani spoke as a private citizen on a matter of public concern, the court was left to consider only whether the distractions NJIT identified as flowing from Jorjani’s speech outweigh interest in his discussion. “They do not,” the court asserted.
The appeals court said it must “balance the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs” through its employees.
“Jorjani’s speech occurred entirely outside NJIT’s academic environs. His theories, even if lacking in classical rigor, remain of public import. It matters not that his opinions do not enjoy majoritarian support, since ‘the proudest boast of our free speech jurisprudence is that we protect the freedom to express,’” the court stated.
NJIT Disruption
Against the public interest in Jorjani’s views and the freedom to express, the appeals court weighed NJIT’s need “as an employer” to promote “the efficiency of the public services it performs.” NJIT pointed only to the “disruption” consisting of certain students’ disapproval of Jorjani’s speech, disagreement among faculty, and administrators fielding complaints. The court characterized this as “minimal evidence of disruption” that differs little from the ordinary operation of a public university.
First, the court said there was no support for NJIT’s contention that student disapproval of Jorjani’s speech disrupted the administration of the university. Some students and alumni disagreed with Jorjani’s views. But NJIT never identified the exact number of calls or complaints, nor any details about the students’ concerns. NJIT provided no objective evidence that students questioned Jorjani’s ability to teach, grade, or supervise his classes evenly, beyond one administrator recalling a student dropped Jorjani’s class. Also, entirely absent was any evidence of specific student protests, upheaval, or unwillingness to abide by university policies. The court commented that “in the context of the college classroom,” students have an “interest in hearing even contrarian views.”
Second, the disputes among Jorjani and his colleagues were not disruption. NJIT cited the faculty letters denouncing Jorjani in the student newspaper, but the court said that “is precisely the sort of reasoned debate that distinguishes speech from distraction.” There was no allegation these editorials interfered with the ability of other faculty to fulfill their responsibilities or otherwise thwarted the university’s efforts to educate students. “So although challenges to ’employee harmony’ might pose disruption when disagreements disturb ‘close working relationships,’ that concern is irrelevant inside the university where professors serve the needs of their students, not fellow academics,” the court stated.
Third, the controversy caused at most a “minor uptick” in communications and ordinary administrative tasks, if at all, that required no additional staffing. The record reveals that throughout this occurrence there were “possibly” 50 emails received about Jorjani. Calls were so few that NJIT’s witness was “not sure what the number is.”
While NJIT also raised an “interest in providing a non-denigrating environment,” and appealed to the notion that Jorjani’s views could, theoretically, undermine the pedagogical relationship between a teacher and student, it did not point to anything in the record that indicated this determination was based on competence or qualifications.
“In essence, NJIT posits that because Jorjani offered views it disliked, the First Amendment should not apply, and it is entitled to summary judgment. We cannot agree, lest we permit universities to discipline professors, students, and staff any time their speech might cause offense,” the judges concluded.
The Third Circuit vacated the judgment and remanded the case to the district court for further proceedings.
The opinion written by Justice Paul B. Matey was joined by Justices Cheryl Ann Krause and Peter J. Phipps.