Court Allows Antisemitism Case Against Harvard to Proceed
As we predicted, this case has legs: [P]laintiffs have plausibly pled that they were subject to severe, pervasive, and objectively offensive harassment” that “impacted plaintiffs’ life experience at Harvard”
The United States District Court, District of Massachusetts, ruled that the antisemitism case against Harvard would go forward.
History
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:
- Harvard Ranks First in Anti-Semitic Incidents, According to Study
- Harvard Hosts Activist Known for Vile Anti-Semitic Rhetoric
Post-October 7, 2023:
- House Committee Tells Harvard it Has Two Weeks to Hand Over Antisemitism Investigation Documents
- Harvard Jewish Students Say They Have ‘Witnessed the Denial of Genuine Instances of Antisemitism’
- Rabbi In Harvard Crimson: It’s Time to ‘Confront and Overcome’ Anti-Semitism on Campus
- Rabbi at Harvard Claims School is Forcing Jewish Student Group to Lock Up Menorah at Night for Fear of Vandalism
- House GOP Demanding Harvard be Stripped of Billions in Federal Funding Over Anti-Semitism
- Early Applications to Harvard Down 17 Percent From Last Year Amid Anti-Semitism Scandal
Antisemitism Case
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:
- Jewish Students Sue Harvard for ‘Enabling Antisemitism’ on Campus
- ANALYSIS – Harvard Jewish Student Antisemitism Lawsuit
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:
Breaking: Harvard has lost the motion to dismiss. The case will now move through the court system. This is a massive step to restoring Harvard to the once great university it was.
If administrations won’t enforce the law, the court system will make them. pic.twitter.com/mDhnIREkcO
— Eyal Yakoby (@EYakoby) August 6, 2024
Onward to victory! Today, a judge ruled that our lawsuit against Harvard WILL go to trial! Jewish students will continue to speak up. Am Yisroel Chai! pic.twitter.com/EHypGH9SfV
— Shabbos Kestenbaum (@ShabbosK) August 6, 2024
A US judge has refused to dismiss a lawsuit accusing Harvard of letting its campus become a hotbed of antisemitism.
US District Judge Richard Stearns says that “the facts as pled show that Harvard failed its Jewish students.”
— Aviva Klompas (@AvivaKlompas) August 6, 2024
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Comments
ha vad is clearly guilty of hostility towards america
1st question I’d asked the Judge,
Are you a Harvard Grad or Alumni member?
I admit to being surprised. This being in Massachusetts I would expect the court to rule that the plaintiffs “had no standing”.
Subotai Bahadur
There’s assault, and there’s intimidation, other than that what’s the complaint? I don’t know how to fit an antisemitism suit into rule of law.
No special status for Jews.
“No special status for Jews.”
How about for Negroes? Had black students been subjected to an equivalent level of hatred and assault at Harvard based solely on their ethnicity, the entire country would have risen up in justifiable outrage.
The extremely thin excuse that this was anti-Zionism rather than Jewhate would be similar to blaming American black students for the outrageous and deadly attacks against whites in South Africa.
Just a frail leaf to disguise the toxic mess that is ethnic hate. Its not speech, and its anti-American.
It shouldn’t matter for blacks either. The claim to special status is fatal to the protected group, as anybody can see in the case of blacks. They waste time on their protected status instead of something that might advance them.
thats how they advance….violence and the fear that civility has for them if not bowed down to
I don’t presume that black people don’t vote their self-interest. They vote consistently for the tilted playing field. We’ll see in this election but Trump-Vance will be lucky to get 20% of the vote, and even Trump favored blacks with a special “Platinum Plan” of some sort in his first term. But blacks vote Dem, they just do.
The benefits of special status are preferable to them than the freedom of colorblind status. And they know what they want; I would not presume to say they’re wrong, and I won’t bother trying to change their minds which we’ve learned are cast in concrete on this issue.
It’s an easy argument to make that blacks stupidly vote for their own protected status with baleful results. It’s an argument that you can make to blacks. Glenn Loury does make it in fact.
There’s their obligation under law to provide a safe space for all students, including Jews. Now if they were bound by the first amendment, and thus were unable to provide such a space for blacks, or gays, or the “minority” of the week, then they would be entitled to treat Jews the same way. Likewise if they had a consistent policy of behaving as if bound by the first amendment. But they don’t. You can’t be a Harvard student and shout “Kill the N*****s”. You can’t even say that the IDF should wipe out the “Palestinians”. But you can say “Kill the Jews” with impunity, because “freedom of speech” and “academic freedom”. And that’s what this lawsuit is about.
It’s a university. You can say anything that you think is true.
University codes of conduct still apply to student behavior towards fellow students. This isn’t about speech alone. Don’t be so dense in your shallow analysis.
The code of conduct can’t restrict what you’re willing to argue. That’s the point of a university. The purpose is counter-argument.
In this case neither side has an argument because they’re arguing who’s more oppressed. That’s an internal fiction, very individual.
Jews need to up their game instead of pretending they’re black.
No, these schools have actual speech codes, which would be illegal if they were government schools, but they’re private so they’re allowed. And those speech codes are quite strict, except when it comes to antisemitism. Then they suddenly discover the freedom of expression.
Like “kill every Jew on campus, starting now?” Or “Make sure no Jews are allowed to join any student organization?” Ok, good to know where you stand.
You could ask why kill every Jew on campus. Ask for a reason. The start of a discussion that it’s easy to win.
First of all, they don’t let you ask. They shout you down.
Second, that only works if you can also say kill every black person, or every gay person, or every Arab. But you can’t. They’ll expel you for saying those things, but not for saying kill the Jews.
Either they have freedom of speech or they don’t. They can’t have it both ways.
Except that you can’t. There are speech codes, and you can’t say anything that upsets the left. If you do you are brought up on charges, and may be fired if you work there or expelled if you’re a student.
You can’t say anything racist, sexist, homophobic, “Islamophobic”, etc. You can’t say Israel should wipe out the “Palestinians”, or even that the “Palestinians” aren’t entitled to a state. You can advocate zionism, but only a watered-down version that supports a “two-state solution”.
The only time they suddenly discover academic freedom is when you say kill the Jews, that the “Palestinians” should wipe out Israel, that the Jews aren’t entitled to govern themselves in their own native land.
That’s why there’s a lawsuit.
You can say anything you can argue. Try it.
No, you can’t. Not on these private universities. You will be expelled if a student, or fired if faculty. And quite possibly beaten up by students, with campus police watching and doing nothing, and your assailants will get a medal. That’s not how it should be, but it’s how it is.
You’ve posted similarly myopic and foolish statements, before. This isn’t about “special treatment” — it’s about the universities failure to robustly and consistently adhere to and enforce their own voluminous codes of conduct and standards of student and faculty behavior, during these episodes of anti-Jew and anti-Israel animus and violence, committed by Islamofascists, Muslim supremacists and non-Muslim, fellow travelers. Conduct that would have been swiftly condemned and punished/penalized/dealt with, had any other minority ethnic or religious group been targeted.
Why is it that when Jews simply ask to exercise the same rights as other human beings, certain people accuse them of wanting special rights?
They could act like white males. Do I claim special rights? I just argue what I think is right.
Do Jews even know what to argue? I”d say no. It’s not tit for tat, it’s morality over barbarism. It’s even traditional in the religion, apparently driven out by victimology today. That morality has even been picked up by Christianity so it would be easy to argue., not as if you had a niche religion.
Jews are not claiming special rights. They’re claiming the same rights as everyone else, which they’re currently being denied.
The idea of restoring Harvard is probably misguided at least in the short and medium term. So much of the current Harvard faculty and administration would have to be ripped out to fix the problem, what would be left would be a severely diminished (and chastened) institution that would have to rebuild both its faculty and reputation — two of the slowest things to rebuild, although its unlimited checkbook can help with hiring.
Harvard will have to be largely gutted. Otherwise it will still be hostile, just more subtly so. And I am afraid it will get away with the second option and not be forced into the first one.
This is the key to the whole suit.
Harvard and the other private universities have long claimed that although they are not bound by the first amendment they have a firm policy of behaving as if they were. They call it “academic freedom”, and it’s supposed to be the core and foundational principle of the academy.
And that is what the three private university presidents infamously argued to the Congressional committee last year. That they had no choice but to allow all these things, because of the freedom of speech.
And that argument would be correct if they were government institutions, or if they actually had the policy they claimed to have. But the fact is that they don’t. Those at these institutions who dare to say things the left doesn’t like quickly find themselves in trouble, and if they invoke the freedom of speech they’re told that that doesn’t apply to private entities. Which is correct, but they can’t have it both ways. Either they respect the freedom of speech or they don’t. If they allow advocacy of slavery, segregation, homophobia, and all the other bugaboos of the left, then they may and must allow antisemitism as well; if they don’t, then they mayn’t and mustn’t.
You can make a breach of contract suit if antisemitism is listed. Or you can argue that it claims to be a university and you can say anything you’re willing to defend in argument, otherwise it’s not a university.
And that argument will get you nowhere. They have no legal obligation to allow free speech, so they don’t, while claiming they do. When you sue them they go to court and say they’re not bound by the freedom of speech, and you violated the speech code. But when neo-nazi mobs fly nazi flags and openly call for genocide against Jews, suddenly the universities discover freedom of speech.