"These Events Took Place in 2023—Not 1943": Title VI Anti-Semitic Harassment Claim Against Cooper Union May Proceed

Judge John Cronan's opinion today in Gartenberg v. Cooper Union (S.D.N.Y.) considers Jewish students' claim that Cooper Union, a N.Y. private college, was deliberately indifferent to protesters' creating a hostile environment for Jewish students following the Oct. 7 attack. As I noted earlier, Judge Cronan concluded (generally correctly, I think), that the First Amendment bars Title VI liability based on "speech on matters of public concern." But the court allowed plaintiffs' case to go forward based on their allegations of other, constitutionally unprotected, conduct; an excerpt from the long opinion:

While Cooper Union is correct that the First Amendment imposes significant limits on the ways in which the Court can rely on many of the alleged acts of harassment detailed in Gartenberg's Complaint, Gartenberg nevertheless alleges sufficient facts to establish an actionably hostile educational environment based on instances of harassment that are not constitutionally protected in this context….

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!'" They then spread out along the floor-to-ceiling windows separating the library from the hallway and banged loudly on the glass while waiving a Palestinian flag, holding up signs critical of Israel, and continuing their chants, this time plausibly directed at the visibly Jewish students inside the library.

This ordeal, which lasted approximately twenty minutes, was sufficiently threatening that a Cooper Union administrator locked the library doors as the mob approached, and the Jewish students left inside, some of whom were crying, contacted their loved ones and attempted to call the NYPD for help. Indeed, two school employees suggested that those Jewish students, and those students alone, should "hid[e] in the windowless upstairs portion of the library out of the demonstrators' sight" or attempt to "escap[e] the library through the back exit." And as noted, President Sparks herself was sufficiently frightened that she locked her office door to keep the demonstrators out before escaping the building through a back exit, and then "had a security guard stationed in front of her office for the remainder of the fall semester." Finally, when the Jewish students were at last able to leave, some of them were escorted out by campus security. These facts provide compelling support for Gartenberg's allegation that this incident was threatening or humiliating.

{Cooper Union vigorously disputes Gartenberg's characterization of the library incident and its response thereto, relying in part on statements made by the NYPD during a press conference regarding the incident. At the pleading stage, however, the Court must accept the allegations in Gartenberg's Complaint as true and view those facts in the light most favorable to her.}

Pushing back, Cooper Union faults the Jewish students for "gather[ing] in a prominent place in the library where they could be seen by the demonstrators," and for refusing the suggestion to "hid[e] in the windowless upstairs portion of the library out of the demonstrators' sight or escap[e] the library through the back exit." The school also notes that as the mob of protestors approached the Foundation Building's library, an administrator locked the library doors to keep the demonstrators out.

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," and was objectively severe.

Gartenberg also alleges that Jewish students were harassed both before and after the library incident through repeated instances of antisemitic vandalism and graffiti that violated Cooper Union's disciplinary policies. Jewish students who hung up posters with the names and photographs of people who had been abducted by Hamas during the October 7 attacks found those posters vandalized and torn down, "leaving just scraps of paper behind." Jewish students also found a bathroom stall vandalized with the phrase "from the river to the sea" written in a font commonly associated with Mein Kampf, "Hitler's famous work justifying the murder of six million Jews." And on October 23, 2023, the colonnade windows of the Foundation Building were defaced with signs that denigrated Jews in Israel as "settlers," justified Hamas's October 7 terror attacks as a mere "reaction" to that "settler colonization," and suggested that there should be no "blame … for the counterattack."

As alleged, these incidents of vandalism were extremely serious. The act of tearing down posters drawing attention to the abduction of Israelis, just days or weeks after a horrific antisemitic terror attack, sent an unmistakable message of national-origin-based hostility to Cooper Union's Jewish students. And if the message had not been clear enough, defacing the windows of the Foundation Building with express statements justifying the October 7 attacks as a "counterattack" or "reaction" to Jews to being "settlers" drove it home. Finally, though a touch more subtle than displaying a symbol like a swastika, the use of distinctive lettering associated with Hitler's manifesto, especially when used in conjunction with a phrase than can plausibly be understood as calling for the destruction of the State of Israel and the Jewish people, was also readily "capable of arousing fear and intimidation" among Cooper Union's Jewish students.

These further episodes of harassment are just as severe or pervasive, if not more so, than the kinds of verbal taunting that courts in this District have deemed sufficient to state a plausible claim for a hostile environment, especially in conjunction with the physically threatening library incident. And unlike the first category of alleged harassment that Gartenberg relies on discussed above, these acts of vandalism—tearing down hostage posters, scrawling plausibly antisemitic graffiti where Jewish students could not reasonably avoid it, and defacing the windows of a main campus building that Jewish students must enter and walk past—were not reasonably calculated to contribute to public discourse and violated Cooper Union's time, place, and manner regulations.

These acts of vandalism therefore lacked the degree of legitimate expressive "purpose that might merit the kind of First Amendment protection that has long been recognized in the academic arena." … "[I]t is an untenable position that conduct such as vandalism is protected by the First Amendment merely because those engaged in such conduct intend thereby to express an idea." … Taking these incidents into consideration for purposes of the hostile environment analysis appropriately "balance[s] the government's interest in regulating for the public welfare with the societal value of maintaining a free marketplace of ideas," and is unlikely to pose a genuine threat to the freedom of expression on college campuses.

Although it may ultimately turn out that the protestors' conduct on October 25 and otherwise was not in any part motivated by animus towards Jews or was less severe and pervasive than the Complaint makes it seem, "the interpretation of any ambiguous conduct is properly 'an issue for the jury.'" Accordingly, Gartenberg plausibly alleges that Jewish students at Cooper Union were subject to antisemitic abuse that was both severe and pervasive based on facts properly considered under Title VI and the First Amendment.