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Dumping professor for showing class Muhammad art may be 'religious discrimination,' court rules

Enforcing the "preference" of Muslim students at Minnesota's Hamline University on a non-Muslim professor plausibly violates state law, Biden nominee says. President denies kerfuffle prompted her scheduled retirement.

Published: September 18, 2023 11:00pm

Updated: September 19, 2023 6:08pm

A federal judge refused to dismiss religious discrimination claims against a private university that dumped an art history professor after she showed her class "Islamophobic" depictions of the Prophet Muhammad commissioned by Muslims, saying the "novelty" of Erika Lopez Prater's argument didn't make it implausible.

The order Friday by U.S. District Judge Katherine Menendez means ongoing scrutiny of Hamline University, whose President Fayneese Miller announced her scheduled retirement two months after an overwhelming vote of no-confidence from faculty in the wake of Prater's non-renewal.

The Higher Learning Commission ended its related accreditation probe of Hamline a month after the Foundation for Individual Rights and Expression filed a complaint because the commission does not "typically" investigate third-party complaints, according to a Feb. 3 response letter FIRE provided to Just the News on Monday.

HLC has "nothing to report" about Hamline and any accreditation change would be reflected on the university's HLC page, a spokesperson told Just the News before FIRE responded. Hamline does not come up for "reaffirmation" until the 2027-2028 academic year.

An American Association of University Professors' investigation found that Hamline denied Prater "a legitimate academic rationale" for withholding "any further teaching assignments." 

AAUP's May report accused the university of a "de facto campaign of vilification" against Prater that "appears to have engaged outside entities and may have encouraged student involvement," with "repercussions" that seem to have "followed" her to a "neighboring institution." (Prater's LinkedIn page says she's an associate lecturer at the Minneapolis College of Art and Design.)

The lawsuit's continuation into legal discovery could spook other colleges that took actions to purportedly protect Muslim students from depictions of Muhammad, the subject of an ongoing 1,400-year dispute within Islam, after one or a handful of students complained.

San Francisco State University opened an investigation of professor Maziar Behrooz this spring for showing students a depiction that is commonly sold near holy sites in his native Iran, promptly drawing a legal warning from the Foundation for Individual Rights and Expression (FIRE).

Behrooz told Just the News the "case has been dismissed and is now closed" but declined to share the letter he received stating his conduct was protected by "academic freedom." He said that "no one interviewed me and asked for my side of the story" but that he has since "showed the portrait again" with no consequences. 

Another Minnesota liberal arts college, Macalester, temporarily shut down, then added privacy curtains to an art exhibit by another Iran-born professor, Taravat Talepasand, "to prevent unintentional or non-consensual viewing" of the partially exposed figures in hijabs and niqabs

Such colleges may also be breathing a sigh of relief, however. Judge Menendez threw out Prater's reprisal, defamation, intentional infliction of emotional distress and retaliation claims against the university, and rejected her motion to remand the lawsuit to state court because the claims "substantially depend upon the interpretation" of her collective bargaining agreement under federal law.

In a brief analysis of the ruling, UCLA First Amendment law professor Eugene Volokh said that forcing employees to follow religiously motivated but "secularly defined" employment rules doesn't equate with religious discrimination. 

But Volokh wrote that Prater may have an opening at a later stage of litigation in her "non-conformance" argument, that requiring an employee to "avoid what some religious people see as blasphemy" is akin to illegally forcing them to "affirmatively engage in religious worship."

Alex Morey, director of FIRE's campus rights advocacy, told Just the News "it will be very interesting to watch [Prater's] religious discrimination claim play out in court" while cautioning this was uncharted legal territory.

"The Muhammad painting controversy was a brazen violation of academic freedom and a huge, international-headline-making embarrassment for Hamline," she wrote in an email.

after becoming a "huge, international-headline-making embarrassment for Hamline," a cautionary tale for other universities. "The Muhammad painting controversy was a brazen violation of academic freedom," she said.

Hamline didn't respond to Just the News queries Monday but told Minnesota nonprofit newsroom Sahan Journal on Friday that it was reviewing the order. Prater's lawyers didn't respond to queries.

President Miller has waffled on the controversy, first claiming Prater didn't have a job to lose, then admitting officials made a "flawed" characterization of Prater's opt-out lesson after the Council on American-Islamic Relationships sided with the professor

CAIR's national office weighed in after its state affiliate sided with Prater's student who filed the complaint, Muslim Students Association President Aram Wedatalla.

Only in June did Miller publicly claim her scheduled retirement next year was unrelated to the Prater controversy. She told the Minnesota Spokesman-Recorder that "most of my goals" will have been accomplished by June 2024 and Hamline already exceeded its "comprehensive campaign" fundraising goal.

The school hasn't shied away from controversy since then. Last week, its Office of Inclusive Excellence, whose director called Prater's lesson Islamophobic, hosted an "Academic Freedom and Cultural Perspectives" forum that has not been made available except for a day-of livestream limited to registered attendees.

The forum included critical race theory popularizers Robin DiAngelo, who this year urged nonwhites to "get away from" whites and earns upwards of $20,000 per workshop, and Tim Wise, who once said "sorta kidding" that Christians "deserve to be locked up."

Hamline failed to convince Judge Menendez, nominated by President Biden, that Prater had not "plausibly allege[d] that Hamline discriminated against her because she was not a Muslim or did not conform to a belief that certain Muslims share," according to Friday's order.

The Minnesota Human Rights Act, under which Prater brought the claim, prohibits discrimination "because of … religion" whether or not the plaintiff adheres to that religion, the professor argued. 

Menendez said she has support in binding precedent from the 8th U.S. Circuit Court of Appeals, including a case in which an employer imposed a "no-beard" policy based on "the preference of third parties."

The judge also noted the 7th, 9th and 10th circuits have "dispensed with the need to plead membership in a protected class altogether" for "reverse religious" discrimination.

While the professor "may have difficulty proving her case at later stages," especially that Hamline would have treated her differently as a Muslim, Menendez said Prater's allegations offer "many suggestions" that the university knew she wasn't Muslim. 

Liberal arts dean Marcela Kostihova, for example, told Prater that showing the Muhammad depictions to Muslim students was like using the n-word in front of black students. President Miller herself told all staff that Prater did not show "respect for the observant Muslim students in that classroom."

The judge also cited the "temporal proximity" between the classroom incident and her non-renewal notice, just two weeks, as evidence of "discriminatory motive." 

Administrators "continued" their description of her conduct as Islamophobic, suggesting "it was a problem" that Prater "did not conform to the belief that one should not view images of the Prophet Muhammad for any reason," Menendez wrote.

The professor is out of luck on her defamation claim, however, in part because different Muslim traditions disagree with one other on the propriety of Muhammad depictions, according to the judge. 

Administrators calling her conduct "Islamophobic" and "acts of intolerance" are simply "opinions that cannot be characterized, let alone proven, as true or false," though Menendez said she "sympathizes with how difficult it has been" for Lopez to be branded as such.

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