Eugene blogged earlier today about Judge Gerard McHugh's opinion dismissing a hostile environment complaint by Jewish students against Haverford College. I have not read the complaint, and I'm not going to take issue with Judge McHugh's ruling--I tend to think that the strongest case Jewish students typically have is disparate treatment, not hostile environment, in part for the First Amendment reasons Judge McHugh identifies--but I did find some of his reasoning rather dubious, to wit:
(1) Plaintiffs also discuss assorted social media posts made by Haverford Professors Gina Velasco, Guangtian Ha, and Tarik Aougab on their personal social media accounts. Id. ¶¶ 49, 51, 54-57. These posts all disparage those who continue to support Israel, but vary in tone, taste, and conviction. Id. I begin with the observation the social media posts are leveled at the state of Israel, not people of Jewish descent.
Well, no. If social media posts by professors are disparaging supporters of Israel, those posts are disparaging individuals, not the state of Israel. On northeastern liberal arts campuses like Haverford, the most vocal supporters of Israel will be predominately, perhaps exclusively, Jewish students. Professors nevertheless have a right to criticize people, including Jewish people, for supporting Israel. However, there is a point where such criticism can be of a nature where the professor may be justly suspected of being unwilling to treat some of his or her students fairly. (Imagine a professor who says, for example, "I will take any opportunity I can to take revenge on any Zionists I come across.") At that point, the university may have a duty to step in.
(2) At a meeting with Jewish community leaders to discuss the campus climate, Vice President Young also reportedly said that "Jewish students needed to condemn 'genocide' rather than report[] antisemitism." At a similar meeting with Jewish community leaders, Plaintiffs also aver that Dean McKnight posited that attacks against Jews who are committed to Israel are categorically different from attacks against other minorities. Plaintiffs finally contend that at a Chabad-hosted event, President Raymond stated that on October 7th, she saw "peaceful people" breaking free from their chains.
As a preliminary matter, none of these statements embrace Hamas. Plaintiffs can reasonably characterize them as focusing on the suffering of Palestinians without showing similar concern for the losses inflicted by Hamas or for the surge of antisemitic incidents making headlines. As a matter of campus leadership, there may be ample basis for criticism if such statements were made, but the statements remain pure speech about matters of public concern.
My first objection is that Vice President Young has an obligation to enforce Title VI, and at least some manifestations of antisemitism are violations of Title VI. For a university VP to be telling Jewish leaders that students shouldn't be reporting antisemitism, period, seems to strongly suggest that VP Young is discouraging students from reporting potential Title VI violations, and also that Young will not enforce Title VI when it comes to antisemitism. Imagine, for example, a Swarthmore VP telling black community leaders that instead of African American students reporting racism on campus, they should be condemning genocide in South Sudan.
Second, while McKnight is entitled to his opinion that attacking Jews who support Israel is categorically different than attacking members of other minority groups, the dean also has Title VI obligations. Imagine Dean McKnight saying "attacking women who support abortion/black students who support affirmative action is 'categorically different' than attacking other groups." You can't imagine it because it wouldn't happen, but in any event the dean doesn't get to pick and choose which groups on campus get protected and why. To the extent he is saying that they are being attacked for their ideology rather than their identity, that raises all sorts of complicated questions that can't be dismissed "categorically."
Third, if President Raymond indeed stated that on 10/7, she saw "peaceful people breaking free from their chains," how is that not embracing Hamas? Who was responsible for October 7, if not Hamas?
At least with regard to points 1 and 2, when you are in a position of university authority, and in that position you are charged with enforcing civil rights laws, your comments that relate to such enforcement may in fact be speech on matters of public concern, but that surely doesn't provide a blanket exemption from liability. Imagine, for example, a university official says, "I think Latinos are typically criminals, and I wish we did not have any at Haverford." Is that speech on a matter of public concern? Sure. Does that mean the First Amendment protects Haverford from liability based in part on that statement if Latino students sue, and use that as evidence of (at best) deliberate indifference to their concerns? Hardly.
(3) The encampment lasted three days, a relatively short period compared to similar encampment activity on other college campuses. … Here, amidst a period of extreme unrest on college campuses across the country, it was not clearly unreasonable for administrators to allow protestors to freely express themselves for three days.
I've expressed the view that the way universities should handle rule-breakers is to ask whether they would allow the rule-breaking if white supremacists were doing it. Surely, Haverford fails that test here, and I don't think it's "reasonable" for universities to decide whether to enforce rules based on the political views of the rule-breakers.
But my bigger concern here is Judge McHugh referring to an illicit encampment as students freely expressing themselves. Occupying someone else's (Haverford's) property is trespass, not freedom of expression. The students could have expressed themselves in all sorts of ways without breaking college rules, and the law. So if Judge McHugh is correct that Haverford's response was reasonable, it was because it was reasonable for Haverford to allow students to break school rules and the law, because no one was otherwise stopping the students from expressing themselves.
(Fun thought experiment: imagine the students "occupied" Judge McHugh's chambers or courtroom. Think they would have lasted three days thanks to his tolerance for "freedom of expression"?)
To conclude, again, I'm not arguing that Judge McHugh's decision was ultimately wrong. At the very least, I would need to study the pleadings before I could think about reaching such a conclusion. I also tend to be skeptical of hostile environment claims, both because of First Amendment concerns and because it's very hard to prove that a plaintiff was truly denied the benefits of an education by a hostile educational environment. But that said, I think that Judge McHugh's sloppy reasoning undermines the force of his opinion, and makes it look like he is apologizing for Haverford administrator's misbehavior rather than merely concluding that it did not rise to the level of a Title VI hostile environment violation.
