"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.

Comments

[Dr. Ed 2]

"written in a font commonly associated with Mein Kampf, "

Whiskey Tango Foxtrot?!?

[Dr. Ed 2]

I mean that two ways -- first, what *IS* a"Mein Kampf" font -- as opposed to one associated with -- say -- German wedding invitations of the time. A century ago, fonts were lead type and your average printer wouldn't have that many, particularly when each size was a different drawer.

Second, presuming there even *is* a unique Nazi font, how does using it to express innocent messages actionable? Isn't this a case where content matters?

[SRG2]

How is "From the river to the sea" innocent?

[Noscitur a sociis]

The answer is in my dissertation.

[RoyMo]

Ironically the Nazis disdained blackletter fonts such as Fraktur because they looked too much like Hebrew and favored modern san serif fonts such as Futura, which is ironic since Futura's creator fled to Switzerland in 1933 after being released from a concentration camp. After the war the occupation authorities further sanctioned Fraktur, and the older German Handwriting, Kurrentschrift, in favor of Ausgangsschrift, which is more readable to English and French speakers. They thus made permanent the Nazi project of abandoning Fraktur and Kurrentschrift.

[Dr. Ed 2]

I did not know this -- nor why 77 is anything other than the number between 76 and 78.

[ThePublius]

That is very interesting, thank you!

[Ciobair]

It's even more complicated - and more strange. As always, it's a mistake to see the Nazis as a homogenous movement with coherent ideology - rather, they were, quite intentionally, a chaotic bunch of splinter groups, in constant infighting with each other and jostling for supremacy. Which also allowed them to speak "with all tongues to all people, part of the reasons for their success.

The "Fraktura v Antiqua fight" is one of these stories. Fraktura, a development of the typeset used by Gutenberg, had at one point dominated much of Europe. Then the main competitor, Antiqua, was developed in Italy and directly linked with the Renaissance idea of reviving the glory of Rome. (Now, which other fascist dictator and ally of Nazi Germany had the same idea...? Gives you an idea of one of the fault lines..). The German-speaking countries kept Fraktura longer than the rest of Europe, but by the 19th century, it was on its way out even there, especially after scientific publications and journals adopted the "modern" style.

And there you get the other fission: For the Nazi's romanticist, anti-modernity wing, scientists were "global elitists", inherently suspicious and due to their international outlook, "citizens of nowhere" (oops, sorry, that was not the Nazis, that's what Theresa May called us). But for their modernist wing around the big technology companies, they were the guarantors of a resurgent and modern Germany, held back by naive attachments to the past.

The typesetting war was therefore as much as Nazi-internal power struggle as anything else. The Romanticists were initially successful, especially with the "Tannenberg font" developed in the 1930, named after the WWI Battle. That was technically a ist eine broken (Fraktur) Grotesk font, and difficult to classify. The Nazis did initially promote it and used it in official material, renamed street signs etc etc and yes, on the cover of the original Version of Mein Kampf, the title had been handwritten in that style - so it is not entirely wrong to make that connection.

However, the other party wing proved stronger eventually, also when after the beginning of the war the focus shifted from glorification of unspoiled nature to the glorification of the steel industry and modern technology. And that eventually led to Tanneberg and similar styles getting prohibited:

"I announce the following, by order of the Führer:

It is false to regard the so-called Gothic typeface as a German typeface. In reality, the so-called Gothic typeface consists of Schwabacher-Jewish letters. Just as they later came to own the newspapers, the Jews living in Germany also owned the printing presses… and thus came about the common use in Germany of Schwabacher-Jewish letters.

Today the Führer… decided that Antiqua type is to be regarded as the standard typeface. Over time, all printed matter should be converted to this standard typeface. This will occur as soon as possible in regard to school textbooks, only the standard script will be taught in village and primary schools. The use of Schwabacher-Jewish letters by authorities will in future cease. Certificates of appointment for officials, street signs and the like will in future only be produced in standard lettering…

Signed, M. Bormann.”

After the war, this policy was not changed, though there were exceptions - for instance the (mealy-mouthed, in my opinion) "Declaration of Guilt" by the protestant churches in 1946, which acknowledged, sort of, their complicity with the regime, used Tanneberg font again

[santamonica811]

"...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, ..."

Today I learned that there is a font associated with this Nazi literature. It's called Fraktur, per Google. [Query: "font associated with mein kampf"] And this is apparently a real thing. People are creative in beautiful ways. I guess it's not surprising that certain people are creative in awful and ugly ways.

[Dr. Ed 2]

At one point, UMass proposed having a list of banned words -- it didn't happen because there never was consensus that the list was complete, every time it was about ready, someone would come in with some more words.

My attitude was simple -- you are going to give a list to drunken 19-year-olds, tell them that they aren't allowed to say any of them, and not expect to have the list screamed out of windows at 2 AM?

They are neither going to know what the words mean nor whom they offend -- it will simply be that they are not supposed to do it.

[ReaderY]

I think the judge’s distinction between a message stated in a public protest venue and the same message scrawled as vandalizing grafitti is a reasonable one. Vandalism is conduct not protected by the First Amendment. And given its status as conduct, courts can then consider the content of the grafitti to determine whether it constitutes an act of harassment, even though the same message written on a sign in a public protest would be protected by the First Amendment and would not be.

I also agree that the library jncident represented a low point in Cooper Union’s meeting its obligations to protect its students from harassment. Further, Cooper Union’s argument that it was the Jewish students’ responsibility to flee or hide is practically an admission that it utterly failed to comprehend, let alone perform, its duties under the Civil Rights Act.

[Dr. Ed 2]

Agreed -- but I wouldn't make a distinction had the graffiti been written in perfect Palmer script.

[John F. Carr]

Fraktur is impossible to read.

[Ridgeway]

Genau

[emanate in my penumbra]

Reposting my comment from the other 1A post about this case here:

I dont see the justification for the theory that in the harassment context the 1A only operates to prevent protected speech from being adduced as evidence of a hostile work environment when that speech is on a matter of public concern.

In other words, protected speech on issues of private concern should likewise receive protection.

The only 1A areas where speech on issues of public concern receives heightened protection is in the defamation context (higher mens rea) and for public employee speech. The first situation is a well established category of protected speech, and the second is justified by the need for the government to exert some degree of discipline over its own employees.

As noted, there is no harassment exception to the 1A. In the protected speech context, Courts would never accept a law under strict scrutiny analysis when the goal is just to protect people from offense. Judge Cronan's analysis has been warped by the fact that the hostile environment cause of action has for so long evaded first amendment scrutiny, and by the long running civil religion and paranoia over racism that has emerged in recent decades.

The following passage is particularly concerning:

"Limiting anti-discrimination statutes like Title VI in this manner does not, however, mean that courts must 'fall for the glib assertion that because matters of race and gender are, at the broadest level of abstraction, clearly issues of public concern, all racist and sexist remarks automatically qualify' for First Amendment protection. Applying federal anti-discrimination law consistent with First Amendment principles does not, in other words, require courts to shield all 'derogatory epithets' of marginal value or to protect speech 'even about political matters, that is so persistent or patently harassing that it could not be reasonably designed to contribute to reasoned debate.'"

Even under Judge Cronan's more speech-protective framework, there will be plenty of wiggle room for plaintiffs to argue that a particular racist/sexist remark is not sufficiently geared towards an issue of public concern (maybe because an employee makes the subject remark in a humorous manner, and the plaintiff argues that people normally dont speak about issues of public concern so flippantly). Judge Cronan's analysis also doesn't address the fact that there is widespread disagreement over what expressions/phrases are racist, in what contexts, and by which speakers.

To the extent any protected speech is allowed to form the basis of the hostile environment cause of action (i.e.: to the the extent it is eligible to be adduced as evidence of severe and pervasive discrimination), it should only be speech that fits into the putative one-to-one 1A exception that Professor Volokh has sketched out.

Even here there is a concern that Courts will eventually shoehorn speech into this category where the speaker is not directly targeting/harassing an individual. There might be cases where a speaker makes an allegedly racist/sexist remark within earshot of the plaintiff, but not necessarily directed to her. There will be some gray areas, but the chilling effect will be lower if only one-to-one speech (and other unprotected categories) can be adduced as evidence of a hostile work environment.

To mitigate the risk that the one-to-one category sweeps up too many instances of indirectly targeted speech, plaintiffs should have to establish some evidence of intentionality (i.e.: that although the speaker did not make the remarks directly to the plaintiff, he clearly intended that she hear them).

Another requirement for establishing that speech falls into the one-to-one exception should be that it is part of a pattern of speech targeted at the plaintiff by a specific individual or a group of coordinated individuals. The pattern element would require multiple cases of targeted harassing conduct, and would ensure that employers have at least constructive notice (this would eliminate the prospect of one derogatory remark--such as a coworker uttering the n-word--being sufficient to make out a hostile environment claim).

The pattern requirement would likewise eliminate another censorious ripple effect of hostile environment claims: as Professor Volokh notes, because a plaintiff can make out a severe and pervasive work environment from the speech of various disparate individuals and from remarks made at different times, employers have an incentive to maximally restrict speech to avoid even approaching the amorphous severe-and-pervasive line.

On the flip side, as opposed to the speech of various disparate employees, employers are perfectly capable of controlling their own speech. Therefore, and contra Judge Walker in his snarky reddit-tier opinion in the Florida Stop WOKE Act case, a hostile work environment claim premised on an employer has creating a hostile work environment by hosting a mandatory DEI training session, poses far less of a 1A concern. Employers can avoid liability very easily in a way that avoids restricting the speech of their employees: simply refrain from hosting training sessions of this nature and making them mandatory.

[ReaderY]

“Jeff the retard is a nigger pussy” is speech on a matter of private concern. Full First Amendment protection? Cannot be considered in a Title VI context, no matter how frequently repeated?

[emanate in my penumbra]

That seems to be a pretty clearcut case of targeted speech, and it would thus fall into the one-to-one speech exception to the 1A.

My point is there is a broad swath of speech that is both 1) arguably racist or sexist by somebody's standards and 2) on a matter of private concern and 3) that is not one-to-one

[emanate in my penumbra]

What if the chronology of the events was otherwise similar, but the conduct engaged in by the protestors was not proscribed vandalism, but instead public art (albeit antisemetic in nature) that was permitted by the university? (i.e.: the speech was protected)

[ReaderY]

Then by the decision it would not be harassment within the meaning of the Civil Rights Act, even if exactly the same message in exactly the same font.

[ThePublius]

Those Jewish students in the library were, or could be considered to be, legitimately in fear for their life or safety, and deadly physical force to protect themselves would be justified. What if...?

[Dr. Ed 2]

Or third party self defense.
What if one called her boyfriend, and he brought a dozen of his IDF buddies with him. They might not need guns...

[David Nieporent]

Speaking on behalf of all American Jews everywhere, it is not actually the case that we all have 12 IDF buddies on speed dial.

[ThePublius]

That's funny. I worked in a company in Massachusetts where almost the entire engineering staff were Israelis, and not only were they all former IDF soldiers, they even carried firearms at work! (Until someone made a stink about it.)

[Bored Lawyer]

The case illustrates the utter failure of the authorities here. The response should have been arresting and prosecuting those involved, and expelling them as students (if they were students).

[Dr. Ed 2]

Or at least identifying them and expelling/prosecuting them later.

I could justify this -- lock the Jewish kids inside where they are safe, give them a couple campus cops so they know you are going to defend them, and then identify every one of the schmucks outside.

And then expel them the next morning -- and publicly announce that you have done it and why. Rationale quite simple -- you didn't want it to escalate into physical battery. Hopefully the Jewish kids wouldn't sue you, hopefully a judge would say "preventing bloodshed -- yes, good idea."