The United States District Court, District of Massachusetts, ruled that the antisemitism case against Harvard would go forward.
We have posted about the reports of heinous antisemitism at Harvard for a while now, but especially after the Hamas butchery of October 7, 2023:
Pre-October 7, 2023:
Post-October 7, 2023:
So, as a result of the vast reporting of antisemitism at Harvard, we have been following with great interest the antisemitism case against Harvard filed in federal court in January of this year:
You can review the federal antisemitism Complaint against Harvard here, but check out the first three paragraphs:
1. Harvard, America’s leading university, has become a bastion of rampant anti-Jewish hatred and harassment. Since October 7, 2023, when Hamas terrorists invaded Israel and slaughtered, tortured, raped, burned, and mutilated 1,200 people—including infants, children, and the elderly—antisemitism at Harvard has been particularly severe and pervasive. Mobs of pro-Hamas students and faculty have marched by the hundreds through Harvard’s campus, shouting vile antisemitic slogans and calling for death to Jews and Israel. Those mobs have occupied buildings, classrooms, libraries, student lounges, plazas, and study halls, often for days or weeks at a time, promoting violence against Jews and harassing and assaulting them on campus. Jewish students have been attacked on social media, and Harvard faculty members have promulgated antisemitism in their courses and dismissed and intimidated students who object. What is most striking about all of this is Harvard’s abject failure and refusal to lift a finger to stop and deter this outrageous antisemitic conduct and penalize the students and faculty who perpetrate it.2. Harvard’s antisemitism cancer—as a past Harvard president termed it—manifests itself in a double standard invidious to Jews. Harvard selectively enforces its policies to avoid protecting Jewish students from harassment, hires professors who support anti-Jewish violence and spread antisemitic propaganda, and ignores Jewish students’ pleas for protection. Those professors teach and advocate through a binary oppressor-oppressed lens, through which Jews, one of history’s most persecuted peoples, are typically designated “oppressor,” and therefore unworthy of support or sympathy. Harvard permits students and faculty to advocate, without consequence, the murder of Jews and the destruction of Israel, the only Jewish country in the world. Meanwhile, Harvard requires students to take a training class that warns that they will be disciplined if they engage in sizeism, fatphobia, racism, transphobia, or other disfavored behavior….50. Harvard PSC [“Palestine Solidarity Committee”], SJP [“Students for Justice in Palestine”], and similar groups have harassed Jews on campus for years without consequence, exemplifying Harvard’s deliberate indifference to its severe antisemitism problem. For example, on April 14, 2016, Harvard Law held an event featuring a speech by Tzipi Livni, a leading Israeli politician. At the event, a student SJP leader accosted Livni, asking her, echoing anti-Jewish stereotypes promoted by, among others, the Nazis: “How is that you are so smelly? It’s regarding your odor—about the odor of Tzipi Livni, very smelly.” Harvard did not discipline this student, but, instead, the then-dean of Harvard Law—while recognizing that “[m]any perceive [the incident] as anti-Semitic”—responded “that speech is and should be free,” notwithstanding that the conduct plainly violated policies including Harvard’s Statement on Rights and Responsibilities.[emphasis added here and later in this post]
The rest of the Complaint is filled with similar, outrageous allegations about the heinous antisemitism existing at Harvard and Harvard’s abject failure to do anything about it.
And, in our analysis, posted shortly after the case was filed, we made the following prediction:
These three lawsuits [against Harvard, Penn, and NYU] have “legs” as we say in the business; i.e. they’re not going to dismissed or settled without major, campus-changing actions taken by each university, which seems impossible at this point.
Well, of course, Harvard moved to have the Complaint dismissed, arguing that the Plaintiffs do not have standing (basically that the Plaintiffs were not “injured” by the antisemitic activity), and even if they were, Harvard did what it could to stop the harm.
The Court held oral argument on the motion at the federal courthouse in Boston two weeks ago, on July 24, and just issued its Order, which you can review here and as embedded at the end of this post, denying Harvard’s Motion to Dismiss on almost all counts: “The court concludes that [Plaintiff] Kestenbaum has standing to seek damages to redress the harms he alleges that he suffered while a student at Harvard Divinity, and [Plaintiff Students Against Antisemitism, Inc. (SAA)] has standing to seek prospective injunctive relief,” meaning that the SAA can pursue its desire for a court injunction ordering Harvard to take sufficient action to prevent antisemitic attacks against Jewish students.
As to the argument that even if they were injured, those injuries weren’t so bad, the court dispatched the same with some strong language:
[P]laintiffs have plausibly pled that they were subject to severe, pervasive, and objectively offensive harassment. The [Complaint] vividly limns repeated, fear-inducing conduct that amounted to more than “off-color banter,” or, in Harvard’s words, “offensive utterance[s].” The protests were, at times, confrontational and physically violent, and plaintiffs legitimately fear their repetition. The harassment also impacted plaintiffs’ life experience at Harvard; they dreaded walking through the campus, missed classes, and stopped participating in extracurricular events.
Harvard also argued that it should be given a pass because while its conduct in controlling the antisemitic activity on campus wasn’t ideal, they did their best, but the court disagreed:
Harvard is correct that the [Complaint] describes a handful of steps that Harvard took in response to antisemitic incidents. But as pled, Harvard’s reaction was, at best, indecisive, vacillating, and at times internally contradictory. For example, the day after Dean Ball emailed all Harvard Law students that Caspersen lounge was limited to “personal or small group study and conversation,” demonstrators hosted a “vigil for martyrs” in the lounge without any pushback from law school administrators. Rather than call a halt to the vigil, Dean Ball attended it. In another venue, while Harvard police officers were on scene at the encampment, when a Jewish student was openly “charged” and “push[ed],” the officers failed to react. And while Harvard, on April 22, 2024, suspended the [Palestinian Solidarity Committee] until the end of the semester, the short-term suspension proved to be in name alone, as the PSC spearheaded the creation of the encampment in Harvard Yard just two days later.These are but some of the many examples set out in the [Complaint] documenting Harvard’s failure to address what former President Gay and Interim President Garber repeatedly publicly recognized as an eruption of antisemitism on the Harvard campus. Indeed, in many instances, Harvard did not respond at all. To conclude that the [Complaint] has not plausibly alleged deliberate indifference would reward Harvard for virtuous public declarations that for the most part, according to the allegations of the SAC, proved hollow when it came to taking disciplinary measures against offending students and faculty. In other words, the facts as pled show that Harvard failed its Jewish students.
The court then, surprisingly, offered some comments of its own:
[T]he law expects reasonable and proportionate acts by university officials – the standard is not faultless perfection or ultimate success. Liability attaches when only when a school’s response is so lax, so misdirected, or so poorly executed as to be clearly unreasonable under the known circumstances. The facts as alleged in the SAC plausibly establish that Harvard’s response failed Title VI’s commands.
The court also denied Harvard’s motion to dismiss the contract claims against it, which essentially argued that Harvard failed to live up to its end of the contract that says that in exchange for a student paying a ridiculous amount of tuition, the school will protect the student from bullying and harassment by enforcing its own policies against same.
In sum, our prediction came true; this case has “legs” and will hopefully proceed to trial. I would love to be a fly on the wall during the depositions of senior Harvard administrators, which are now scheduled to happen on a very fast track for federal court. We will keep you updated as the case proceeds. Maybe we will even attend some or all of the trial…TBD.
For now, enjoy some X commentary:
CLICK HERE FOR FULL VERSION OF THIS STORY