Students fighting antisemitism use legal tool that tests power at US colleges

David Voreacos and Janet Lorin | (TNS) Bloomberg

University of Pennsylvania senior Eyal Yakoby wasn’t going to sit idly by as antisemitism crept across campus this fall.

The Israeli American wrote to President Elizabeth Magill to warn about the hostile environment for Jews on campus following the Oct. 7 Hamas attack on Israel. Instead of studying for finals, he went to Congress on Dec. 5 for a press conference.

“There’s times when people have to stand up for those that can’t speak,” Yakoby, 21, said in an interview. “I’d definitely prefer that there was no hatred and no antisemitism and I could just go to class and hang out with my friends.”

On the day he went to Congress, Yakoby and another student also sued Penn, claiming the school fostered a hostile environment that left them feeling unsafe in class or crossing the campus.

Their lawsuit is one of several filed in recent weeks against universities by students citing Title VI of the Civil Rights Act of 1964. The law may become the most powerful legal tool to force universities to change how they balance free speech with the need to protect students from discrimination.

The US Education Department’s Office of Civil Rights oversees enforcement of the law and is using it to impose changes through a less confrontational method. Instead of suing, it typically negotiates with schools as it makes nondiscrimination a condition of receiving federal funding.

“The ultimate Title VI threat is that the university will lose federal funding,” Kenneth Marcus, the chairman of the Louis D. Brandeis Center for Human Rights Under Law and the former assistant US secretary of education for civil rights. “That is very rare.”

But it would be a massive hit to universities, which receive vast sums from the Education Department and other agencies, he said.

Title VI bars all federally funded programs, institutions and activities from intentionally treating individuals worse because of their race, color or national origin. It covers public and private campuses at all educational levels, and it’s now being used by Jewish students facing the worst antisemitism on campuses since before World War II.

Reports of antisemitism and Islamophobia have come amid campus protests about the Hamas massacre of 1,200 people in Israel, prompting an Israeli military response in Gaza that’s killed more than 20,000 people, according to the Hamas-run health ministry.

While Title VI has been around for six decades, Jewish students are using it to sue New York University, the University of California at Berkeley and Carnegie Mellon University. Yakoby’s law firm, Kasowitz Benson Torres, expects to file more cases against schools, including Harvard and Columbia.

“We’re receiving phone calls and emails from students who are very unsafe and fear for their lives,” said Marc Kasowitz, whose firm also sued NYU.

The Yakoby lawsuit seeks to force Penn to enforce its codes of conduct to prevent harassment and a hostile environment for Jewish students. It asks a judge to order Penn to terminate faculty and administrators responsible for the “antisemitic abuse permeating the school” and suspend or expel students engaged in such conduct. It also seeks financial damages.

A Penn spokesman declined to comment.

Ben Chang, a spokesman for Columbia, said that while the school couldn’t comment on potential lawsuits, it’s cooperating with Title VI investigations by the Office of Civil Rights.

“Antisemitism or any other form of hate are antithetical to Columbia’s values,” Chang said. “We are using every available tool to keep our community safe and that includes protecting our Jewish students from antisemitic discrimination or harassment.”

Officials at Harvard didn’t respond to messages seeking comment.

In its investigations, the Office of Civil Rights carries a big stick – schools found in violation may lose federal funding for the program or activities in which the discrimination occurred.

Catherine Lhamon, assistant secretary for the department’s Office of Civil Rights, said it’s been “some decades” since the department withheld funds, and schools tend to back down before the government starts fund termination proceedings.

‘Right to the Edge’

“I have gotten right to the edge of that circumstance with schools multiple times,” Lhamon, who is in her second stint in the post, said in a recent webinar.

In the past two months, Lhamon’s office opened at least 20 investigations into complaints of antisemitism and Islamophobia at schools including Harvard, Penn, Columbia, Stanford, and the University of California, Los Angeles.

Still, while the department is attempting to be even-handed, Muslim and Palestinian students fear the government is “more likely to be coming after them than defending them,” said Edward Ahmed Mitchell, national deputy executive director of the Council on American-Islamic Relations.

The Education Department must not be “weaponized in a thinly veiled attempt to silence political speech in support of Palestinian human rights,” he said.

Over Thanksgiving weekend, three Palestinian college students were shot while walking in Vermont, leaving one paralyzed from the chest down after a bullet lodged in his spine.

The financial threat is more immediate from displeased donors. Ross Stevens, co-founder of Stone Ridge Asset Management, said he would withdraw a Penn donation valued at about $100 million, blaming the school’s stance on antisemitism. At Harvard, the family foundation of billionaire Len Blavatnik is pausing donations after giving at least $270 million to the university, according to a person familiar with the matter.

Meanwhile, Jewish organizations and hundreds of lawyers at prominent law firms are quietly supporting students. Hillel International, the Anti-Defamation League, and the Brandeis Center launched a “legal protection helpline” last month with lawyers from Gibson Dunn & Crutcher. It’s gotten 400 requests for help, handling reports of death threats, vulgar slurs and human feces smeared on the doors of Jewish fraternities.

Campus protests go to the heart of the debate about free speech and antisemitism. Speech normally protected by the First Amendment may violate a private school’s code of conduct if it contributes to a hostile environment or constitutes harassment, according to the ADL.

International Definition

Many schools have adopted an international definition on antisemitism, which includes “a certain perception of Jews, which may be expressed as hatred” toward them.

The Penn lawsuit cites language from pro-Palestinian protests. The chanting of the expression “from the river to the sea, Palestine will be free” is construed by many Jews as a desire for the elimination of Israel. Marc Stern, chief legal officer of the American Jewish Committee, said his organization believes the expression is not protected by the First Amendment.

“We’ll see if the courts agree,” Stern said.

The language of protests can become a political third rail.

At the Dec. 5 hearing in Congress, Magill and two other presidents were asked if “calling for the genocide of Jews” violates their code of conduct or constitutes bullying or harassment. Magill said “it is a context-dependent decision” that could be considered harassment “if the speech becomes conduct.”

Within days, she resigned.

On the day of Magill’s hearing, Yakoby appeared at the press conference with House Republicans and spoke of a “chilling landscape of hatred and hostility” at Penn. “Despite what my university says, I do not feel safe. Let me be clear. I do not feel safe.”

Since then, he’s gotten hundreds of threats. The messages include “Die, Zionist pig” and “Hitler should have finished your grandparents off,” said Yakoby.

–With assistance from Amanda Gordon.

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