Authors: Jonathan Cohen
On Nov. 5, the U.S. District Court for the District of Massachusetts permitted allegations to proceed that Harvard had been deliberately indifferent to harassment against Jewish and Israeli students. Harvard students belonging to the Louis D. Brandeis Center for Human Rights Under Law (the “Brandeis Center”) and Jewish Americans for Fairness in Education (“JAFE”) had sued the University for allegedly permitting Jewish and Israeli students to be “subjected to cruel antisemitic bullying, harassment, and discrimination.” The plaintiffs raised three counts against Harvard under Title VI of the Civil Rights Act: direct discrimination, hostile educational environment (also called “deliberate indifference”), and retaliation. Title VI generally prohibits universities receiving federal funds from intentionally discriminating “on the ground of race, color, or national origin.” The Court dismissed the allegations of direct discrimination and retaliation, but refused to dismiss the deliberate indifference count. This article focuses on why the deliberate indifference count survived.
The plaintiffs pointed to several specific examples of Harvard’s allegedly hostile educational environment. The allegations included:
- After three Harvard Kennedy School (“HKS”) students proposed to conduct a project centered on their Israeli and Jewish identity, their professor pressured them to drop the project and “compared their use of the words ‘Jewish State’ to a student advocating for America to become a country of ‘white supremacy.’” When the HKS students resisted, their professor responded by permitting teaching fellows and other students to engage in “anti-Israeli rhetoric” during class without permitting the HKS students an opportunity to respond. After the Brandeis Center complained in a letter to Harvard, the University conducted an investigation that found that the professor violated University policies but nonetheless declined to take any remedial actions against him. A few months later, Harvard “publicly touted” the professor as a “civil rights hero.”
- A Harvard Business School (“HBS”) student was assaulted by anti-Israel protestors on campus, leading to criminal charges against the protestors. After the HBS student complained to Harvard, the University initially refused to take any remedial actions. After facing pressure from Congress, Harvard began an investigation but then began to drag its feet.
- A Harvard Medical School (“HMS”) student alleged that the University ignored her numerous requests for support after weeks of “rabid protests” celebrating the October 2023 attacks against Israel prevented her from commuting to her lab. Then Harvard refused to allow the HMS student to proceed anonymously with a formal complaint.
The plaintiffs alleged that Harvard was deliberately indifferent to the harassment described above. The Court noted that an institution is “deliberately indifferent” if its response to harassment is “clearly unreasonable in light of the known circumstances.” The Court rejected Harvard’s argument that it had been “unaware” that the HMS student faced any harassment since this claim ran directly counter to the allegations of the Complaint. As to the complaints made by the HKS and HBS students, Harvard argued that its responses to the harassment against them were reasonable because “in each instance, it affirmatively launched an outside investigation into the alleged harassment.” The Court rejected this argument because the “alleged unreasonableness in Harvard’s response arises from its failure (for more than a year) to take any remedial action based on the results of one investigation and its failure (for months on end) to meaningfully advance the other.” The Court found that “[t]o conclude that the mere act of launching an investigation without any further follow-through necessarily defeats a deliberate indifference claim, would be to prioritize form over function.” The Court’s decision can be found here.
This lawsuit is one of several brought against universities alleging discrimination against Jewish or Israeli students since the October 2023 attacks on Israel and the war that followed.
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