In Gartenberg v. The Cooper Union for the Advancement of Science and Art, (SD NY, Feb. 5, 2025), a New York federal district court held that Title VI of the 1964 Civil Rights Act must be applied consistent with the 1st Amendment, even as to private schools. In the case, a group of Jewish students asserted a claim for deliberate indifference to national-origin harassment under Title VI growing out of on-campus incidents after the Gaza-Israel conflict began. The court said in part:
First, speech “on a matter of public concern, directed to the college community,” will generally fail to “constitute unlawful harassment.” ...
[C]onstruing Title VI not to reach instances of pure speech on matters of public concern, or an institution’s failure to censor or punish the same, does not mean that such expression is irrelevant to determining whether actionable harassment occurred. To make out a hostile environment claim, a plaintiff must plead (and then prove) not only that they suffered objectively severe or pervasive harassment, but that the harassment was motivated, at least in part, by a protected characteristic....
Cooper Union’s first line of defense is that none of the speech or conduct identified in Gartenberg’s Complaint was motivated by animus towards Jews, but was instead mere “criticism[] of Israel and/or its policies” and a “show[] of solidarity for the Palestinian cause.”... Gartenberg, by contrast, maintains that Zionism and support for Israel are “an integral part of the national origin and identity of many Jews,” and that Jews’ “belief in Israel as their ancestral national homeland is fundamental to their Jewish identity.” ...
... [T]his case can be resolved without opining on whether conduct or speech hostile to Zionism, itself a term subject to a considerable variety of interpretations, is necessarily antisemitic....
... That the demonstrators at Cooper Union generally avoided the use of overtly antisemitic language and symbols is ... not dispositive. Here, Gartenberg’s Complaint is replete with words and phrases that she alleges are thinly veiled “code words” designed to “activate conscious or subconscious [antisemitic] concepts and frames.”... On October 25, 2023, for instance, pro-Palestinian students at Cooper Union chanted slogans like “[l]ong live the intifada,” “[r]esistance is justified,” and “[i]t is right to rebel.” ... Although the parties offer competing interpretations of these slogans, when uttered just two weeks after the deadliest massacre of Jews since the Holocaust in a manner that reasonably appears to celebrate and glorify that same violence, the Court agrees that such phrases support at least a plausible inference of animus towards Jews....
Regardless of whether this expression is better characterized as righteous protest in support of a noble cause, as the vulgar celebration of terrorism and antisemitism, or as something in between, it is not a proper basis on which to impose civil liability on Cooper Union....
Gartenberg’s allegations, however, go beyond identifying instances of pure political speech. Although the October 25 demonstration began as a peaceful, public protest concerning the Israeli-Palestinian conflict, Gartenberg alleges that after a couple hours a mob of protestors forced their way past campus security guards and into the Foundation Building....
Once inside, the protestors obstructed the hallway and disrupted classes while apparently attempting to locate President Sparks.,,, Unable to find her, the protesters then “descended on the hallway surrounding the library” while continuing to chant their slogans...
It is plausible that this incident was physically threatening or humiliating to the Jewish students huddled inside the library. The demonstrators “attempted to enter the library, banging on and rattling the locked library doors and shouting ‘let us in!’”...
The Court is dismayed by Cooper Union’s suggestion that the Jewish students should have hidden upstairs or left the building, or that locking the library doors was enough to discharge its obligations under Title VI. These events took place in 2023—not 1943—and Title VI places responsibility on colleges and universities to protect their Jewish students from harassment, not on those students to hide themselves away in a proverbial attic or attempt to escape from a place they have a right to be. In sum, the physically threatening or humiliating conduct that the Complaint alleges Jewish students in the library experienced “is entirely outside the ambit of the free speech clause,....
JNS reports on the court's decision.
