Some Dubious Reasoning in Judge Gerald McHugh's Haverford Opinion

Eugene blogged earlier today about Judge Gerald 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.

Comments

[Nathan S]

With regard to whether the posts targeted the state of Israel as opposed to people of Jewish descent, would that same reasoning work if a Nazi’s postings were justified as “attacking international bankers and cosmopolitans, not people of Jewish descent?” I don’t know what the posts said, but a slew of invective at the only Jewish state, and only the Jewish state, seems to tip off that things aren’t what they appear.

[David Bernstein]

We don't need to go that far, because as the judge describes the posts, they were directed at supporters of Israel, not the state of Israel--and he then, illogically, concludes that they were directed at the state of Israel. Imagine posting "everyone who supports gay marriage is evil," and then having a judge say, the post was "aimed at the institution of gay marriage, not individuals."

[thenotoriousrbg]

I think you'd be allowed to say "everyone who supports gay marriage is evil" though, wouldn't you? even under Bostock, assuming for argument's sake that sexual orientation is a protected class, denouncing same-sex marriage (and supporters thereof) is different (and legitimate as protected speech) from heckling gay students. it's hard to imagine opposing a cause without opposing supporters of a cause.

the question for me would be whether pro-Palestinian Jewish students were harassed by the same people, or in the same ways, as pro-Israeli Jewish students. if they're not, that suggests the statements aren't classifying on ethnicity or religion, they're classifying on what "side" of this conflict you're on. (alternatively, if pro-Israeli Jews are harassed specifically (or more) while pro-Israeli non-Jews aren't, that'd be compelling evidence of anti-Semitism that would justify a Title VI complaint.

[Stupid Government Tricks]

Aren't judicial decisions supposed to be logically consistent? It's not just an op-ed in the campus newspaper, it's an official court decision with legal ramifications.

[Supremacy Claus]

The Hebraics should stop depending on the worthless, Democrat run, anti-Semitic legal system. Buy weed burner torches, and visit the tents at night. Wear hoodies and masks, Democrat style. Find the financiers of these protests, with their professional signs, and their scripted chants. Do the same to their homes. If they do not learn, escalate.

All Hebraics over the age of 10 should take a gun safety course. All should be strapped, and defend themselves when confronted by the new Nazis. This time around, visit the financiers, the intellectuals, the religious leaders justifying attacks on them.

[Incunabulum]

I think you should be able to also - but under the current social and legal regime you can't.

So I'll make them live by their own rules - and apply it to 'anti-zionism'.

[Stupid Government Tricks]

Criminy, Prof Bernstein, you're right, he contradicts himself in two consecutive sentences!

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.

Yowsers!
Thanks for that, a good laugh at close of day.

[Roger S]

In fairness, there are lots of non-Jews, like Sen. Ted Cruz and Pres. Trump, who strongly support Israel. Bernstein says the most vocal supporters of Israel at Haverford are Jewish, and that is probably correct.

[Stupid Government Tricks]

In fairness, that's not the point! The point is that his two sentences contradict each other.

[wvattorney13]

In fairness, there is only a sliver of difference between criticizing X and the supporters of X. They sort of overlap.

[Stupid Government Tricks]

In fairness, that sliver of difference makes them contradictory. One says people only, one says country only. In fairness, they cannot both be true. In fairness, they do not overlap.

[wvattorney13]

In fairness, though, what is the policy of a country other than the people who support it? Countries don't have an independent existence apart from the people behind them. All in fairness of course.

[r]

In fairness, it is the Judge himself that "begin[s] with the observation" that directly contradicts his previous sentence. If the observation was not important, it shouldn't be in the opinion. If the distinction is important, the Judge got this horribly wrong. Either way, it should be embarrassing to the Judge and he should either have a good clerk to proof read his opinions or (more likely) do a better job proof reading his clerks' opinions.

[minus the clever name]

YOu don't make sense to me because the real defense that a school is not anti-semitic is a statement to that effect that is known to students and to teachers alike.

I would think that ANY semitic actions (meaning pro or con) should be dealt with the same. This is what many schools do not do and of course that means the ANTIS will far outnumber all other perspectives. Think of Ukranians and the Holodomor, obviously an event of great hate, the haters survived and the hated are now dead.

[Randal]

Oh, David the Fascist Jew. Or really, David the Failed Fascist Jew. So sad.

1. However, there is a point where such criticism can be of a nature...

Any evidence, even anecdotal, that Haverford reached that point? Noap!

2. Imagine, for example, a Swarthmore VP telling black community leaders that instead of African American students reporting racism on campus...

That exact thing is happening and has been happening for years. Jewish snowflakes aren't any more appealing than Black snowflakes.

3. 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.

Wherein you acknowledge to both a) have a soft spot for white supremacists and b) completely misunderstand the role of protests in politics. If there were a white genocide going on resulting in tens of thousands of innocent deaths, you could very well imagine a "white supremacist" protest at a university that would be tolerated for several days, assuming it remains peaceful and focused on the genocide. In other words, you might have a point... if Israel were a peaceful nation not engaged in ethnic cleansing as we speak. If you want to play whataboutism, you need to find a similarly situated group. White supremacists aren't similarly situated to Palestinians and their supporters.

Poor poor David, he's turned into the thing he hates the most. "Never again..." unless the Israelis are the perpetrators and / or the victims are brown, right David?

[ReaderY]

Got you right there. Israelis are brown. Stop trying to pretend they are white Nazi sympathizers because you find it convenient to do so and you’re hoping your audience doesn’t know any history. (Hint: the Nazis were not their friends, racially or otherwise.) The pretense is just part of your general routine racism and defiance of facts.

By the way, what did you personally do to celebrate the Tulsa Liberation of 1921 this year?

You know perfectly well what it is you were celebrating. The Native American intifada against the White Supremacist settler-colonialists that had been sent by the Federal Government specifically to colonize and settle confiscated Native American lands, which the City of Tulsa was sitting on, and to perpetuate genocide against the Native American peoples? You know, the antifada that successfully liberated the settler-colonialist white supremacist capitalist Tulsa “Wall Street”?

[ReaderY]

The much more relevant and on-point genoicide would be the genocide of Native Americans by settler-colonialists brought to Oklahoma specifically to occupy Native land and help destroy Native culture, and the heroic resistance and peaceful uprising of the Native population and their allies that led to America’s most relevant intifada analog, the peaceful and heroic Tulsa Liberation of 1921.

[Incunabulum]

If it's an uprising it is, by definition, not peaceful. You can't have a peaceful uprising as uprisings are by definition a breaking of the peace.

[Dr. Ed 2]

"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.")

Get real -- imagine a professor who says: "Niggers belong in Africa and I wish they'd all go back there."

College would have a problem.

[ReaderY]

The Ku Klax Klan didn’t have the jargon term “settler-colonialists” available to it. But it took full advantage of and fully exploited genuine historical conflicts and resentments between Native and African-Americans created by the Federal Government’s policy during and after the Civil War of confiscating land from Native American tribes that had sided with the Confederacy and giving it to black ex-slaves willing to settle in and colonize it.

The ex-Confederates who became the Klan portrayed themselves as continuing to be in solidarity with their Native American allies, and hence portrayed themselves as equally the victims of the evil settler-colonialist Federal Government which, having conquered them, sicced Negros and Negro Rule on them in order to destroy their way of life and commit cultural genocide against them.

It was a very effective argument. In the 1970s, Asa Earl Carter took huge advantage of the naivete of people on the left by effectively projecting the Klan story onto the Cherokee and generating a lot of sumpathy for his message. Their binary white/non-white world made it impossible to imagine that Native Americans and black people might sometimes be on opposite sides.

Indeed, steven Saliata, the famous pro-Palestinian author, studied Native Americans and their rhetoric specifically to understand how the Klan had been able to take advantage of Leftist naivety to gain this kind of sympathy, in his case by getting people on the left to think of Jews as being in the “white” column. He had what might seem a harder job than the Klan. African-Americans in Oklahoma didn’t have any historical connection to the land while Jews in Palestine do. But he was able to navigate the task quite successfully.

It’s rediculous to think of Jews, who had been recently murdered by Aryan supremacists for racial inferiority, as themselves being Aryan supremacists. But it’s no less rediculous than what the Klan was able to pull off, getting people to think of black people as settler-colonialists and “Negro Rule” reconstructionist regimes as full of rapaciousness and murder.

[David Nieporent]

Remember, this is the same person who won't say "shit" or "fuck," but is very happy to say the n-word.

[Incunabulum]

> I begin with the observation the social media posts are leveled at the state of Israel, not people of Jewish descent.

Bro is *desperate* to split hairs to save his cocktail party invitations.

What is Israel if it's not a 'jewish state'? It's like saying Iran or Saudi Arabia are separate from Islam when Islam information everything about their governments.

[Incunabulum]

If you say 'death to America's does that not also implicitly include 'death to *Americans*?

[ReaderY]

Suppose that Vice President Young had hung out a sign saying “Colored need not apply,” but there was no evidence he had actually turned down any of their First Amendment claims. Would the sign be protected by the First Amendment? No.

Now suppose instead that he made a speech saying “Black people need to work on self-improvement and pull themselves up by their bootstraps rather than always respond to their problems by complaining about being discriminated against.” I’ve made this speech resemble one made by Bill Cosby (before he was outed as a rapist) that, while controversial, was generally regarded as well within the realm of the First Amendment to say. If he had been a University administrator, even in charge of the Civil Rights office, would this have made his statement unprotected?

Now suppose Vice President Asa Earl “Forrest” Carter says that instead of complaining about discrimination, black people should focus on their historic participation in genocide against Native Americans and do something to alleviate the damage they’ve done. I keep bringing this up both because it’s historically true, and also because it represents an example of the left’s falling for similar propaganda. The segregationist Asa Earl Carter really did something like this in the 1970s when, after leaving George Wallace, he reinvented himself as an Oklahoma Cherokee and wrote a fictional autobiography called “The Education of Little Tree” which successfully packaged the core Ku Klux Klan message as a fight of wholesome close-to-nature people against foreign mechanistic capitalist settler-colonialists in a form that the unwitting left fell in love with, at least before he was outed.

[ReaderY]

Sorry. In the first sentence, there was no evidence he had actually turned down any of their discrimination claims.

[Kleppe]

Why do all the Haverford professors have Star Wars names?

[JonFrum]

Just to clarify, Thelathia 'Nikki' Young, black woman,

"Inaugural vice president for institutional equity and access, and a professor of religion and gender and sexuality studies. She directs the College's diversity and equity work."

Black people do hate themselves some Jews.

[Purple Martin]

So, Professor Post says I have not read the complaint, and I'm not going to take issue with Judge McHugh's ruling"...then goes on to take issue after issue with Judge McHugh's ruling.

...and then finishes by criticizing "Judge McHugh's sloppy reasoning" in the ruling, right after saying "I would need to study the pleadings before I could think about reaching such a [negative] conclusion."

To conclude, I'm not arguing that Professor Post is ultimately wrong. At the very least, I would need to study the full post before I could think about reaching such a conclusion.

But that said, I think that Professor Post's sloppy reasoning undermines the force of his argument, and makes it look like he is indulging in factional apologia rather than merely analyzing the logic of a judicial decision.

[David Bernstein]

It's Bernstein, not Post, and you need to learn the difference between a judicial ruling and the reasoning behind it.

[Purple Martin]

My apologies to Professor Post.

[Drewski]

Judge's name is Gerald, not Gerard.

[y81]

I don’t know a single episode in the past 50 years of white supremacists occupying a portion of a university, so I have no basis for predicting how the university would react. But students occupy places all the time to protest war in Iraq/tuition hikes/investment in fossil fuels/whatever, and the reaction of university and municipal authorities is typically very patient and tolerant. That seems like a more relevant comparison.

[David Bernstein]

That's evidence that universities have exhibited tolerance for rule/lawbreaking in the past by students promoting causes favored by the left, and thus that exhibiting tolerance now was not motivated by discriminatory animus toward Jews. It doesn't refute my points that (a) it's ideologically motivated tolerance that would not be exhibited toward, eg, white supremacists; or (b) that trespass and violation of content-neutral school rules does not come within the ambit of "freedom of expression."

[AtR]

This is all interesting legal banter, but, at the end of the day, if you send your child to Haverford, you're are a fool: all they're going to get is "an education".