The Baffling Opinion in the Yakoby v. University of Pennsylvania Title VI Case

The court's rationale for dismissing the case simply ignores the plaintiffs' allegations.

I recently read the complaint and district court opinion in Yakoby v. Trustees of University of Pennsylvania. The plaintiffs brought several claims against Penn, including that Penn tolerated a hostile environment for Jewish students in violation of Title VI of the 1964 Civil Rights Act. The case is currently on appeal to the Third Circuit.

In June, district court judge Mitchell S. Goldberg dismissed the Title VI complaint with the remarkable assertion that "At worst, Plaintiffs accuse Penn of tolerating and permitting the expression of viewpoints which differ from their own."

I say remarkable, because the plaintiffs did in fact make a series allegations that went well beyond (and in most cases had nothing to do with) Penn "tolerating and permission the expression of viewpoints" the plaintiffs disagreed with, including:

(1) Penn received antisemitic emails threatening violence against Penn Hillel and failed to warn students about the threats.
(2) Penn allowed faculty to punish students for refusing to attend anti-Israel ideological events, and to harangue students in class in an abusive manner if they disagreed with the professors' extreme anti-Israel views.
(3) Penn Chabad house was defaced with antisemitic graffiti, with no public response from the university.
(4) A mob that had previously vandalized an Israeli-owned restaurant marched across campus chanting violent "intifada" slogans and defaced campus buildings with no resistance from the Penn administration, which failed to warn Jewish students of the mob or call in law enforcement despite its illegal acts.
(5) Penn threatened Jewish students who complained about discrimination or a hostile environment with retaliation if they pursued their complaints.
(6) Penn enforced its disciplinary rules in a discriminatory manner, for example punishing Professor Amy Wax for allegedly racist statements, but claimed that academic freedom preventing the university from punishing professors who made antisemitic statements. (FWIW, I think this is quite a strong allegation for a discrimination claim based on differential treatment, without needing a hostile environment twist).

The court could have taken these allegations at face value, as it's required to do at the motion to dismiss stage, and then decided whether the allegations, if proven, would in context show a severe and pervasive hostile environment as required under Title VI. Instead, for reasons known only to Judge Goldberg, the court simply ignored all of these allegations and pretended that the plaintiffs merely objected to being exposed to viewpoints they didn't like.

The ruling deserves a quick reversal. I was going to suggest assignment to a different judge on remand, but it turns out that Goldberg retired in September.

Comments

[Frank Drackman]

Penn should get the "Death Penalty"
No, not THAT Death Penalty, the one like SMU got back in the 80's, take their Scholarships, no TV Appearances, no Bowls.
Well maybe they should get THAT Death Penalty.
What is the deal with Pennsylvania?? (HT J. Seinfeld)
They tolerated a Foo-Bawl Coach Boo-fooing his players, Penn might as well be Qom State, and they have a Senator (who I like) who looks like Uncle Fester (I like him, but he looks like Uncle Fester)
I know, "It's PIttsburgh in the West, Philadelphia in the East, with Alabama in between"
Oh yeah, the Pro Wrestler "Goldberg" would have given a more cogent Opinion (note I said "given", writing isn't one of Goldberg's skills)

Frank

[Darth Buckeye]

End all federal grants. End any federal benefits.

[Sarcastr0]

I don’t know this case but “I was going to suggest assignment to a different judge on remand” is not a sign of a winning argument, so much as it is working the refs for an outcome you arrived at via other means.

[Stupid Government Tricks]

Your suggestion of staying with the ref YOU like is just the flip side of your own argument.

[SKofNJ]

I suggest that suggesting an assignment to a different judge is a perfectly reasonable and to-be-expected request when the claim is that the judge's ruling was so far off the mark that it establishes a good chance that the ruling was biased, or that, for whatever reason, this judge cannot be trusted to rule on this case fairly and objectively. It is not at all a sign of a weak argument. If anything, when appropriately presented, it is a sign of a confidence in one's position. Indeed, on occasion, appellate courts will direct that result even without having been asked to do so.

[ReaderY]

I don’t think it helped the plaintiffs here that their lawyers buried their legitimate complaints in a document that began with paragraph after paragraph of non-actionable gripes about the university failing to suppress objectionable viewpoints and how uncomfortable the plaintiffs felt hearing them. Lawyers for these groups really need to learn to separate their legal complaints from their fundraising narratives and focus their legal documents on strictly legally relevant subject matter.

I agree with Professor Bernstein that if you look really hard, some of the alleged facts buried in there really are actionable . But if I were the 3rd Circuit, I’d be much more inclined to admonish the lawyers here for writing a proverbial “big bun” complaint that makes it unnecessarily hard to find where the beef is than fault the judge for asking the obvious question that comes, and that it’s the job of a judge to ask, when reading it.

[Bored Lawyer]

Umm, that's what briefing is for. The briefs are supposed to point these things out. Have you reviewed the briefs?

[Josh R]

The plaintiffs brief has much the same flavor as the complaint.

[SRG2]

Funny how "brief" has changed meaning over the years!

[y81]

Bernstein continues to advance (item 6) the insupportable claim that one suppression of speech not only permits, but requires, the suppression of other speech. Apparently there is some sort of penumbra from somewhere that overrides the First Amendment and requires that if any speech is suppressed, then speech that annoys Jews MUST be suppressed.

As I said in response to Prof. Volokh's request for funds, the Volokh Conspiracy is not a friend to freedom of expression and will not receive any funds from me (though my readership and my complaining will continue).

[Michael P]

The persecution of Amy Wax was premised on the claim that she violated civil rights law. That claim is greatly undermined when closely comparable, or more exaggerated, violations are ignored.

Otherwise it looks like a First Amendment violation pulled on top of refusing to uphold the claimed interpretation of the Civil Rights Act of 1964.

[ReaderY]

The problem here is I don’t see how the plaintiffs here have standing to press that argument. If Amy Wax was wrongly fired, what’s that to these plaintiffs?

[Michael P]

As Prof. Bernstein wrote, the treatment is disparate -- if you want to argue that victims of harassment and discrimination don't have direct claims against the university as employer of those professors, then is the university extending them equal protection of the laws?

The university can't very well argue in Wax's case that she was rightly fired and also that these plaintiffs are out of luck because Wax was wrongly fired.

[David Bernstein]

You really don't understand how punishing a professor that said something offensive about Group A while (obviously falsely) telling Group B that it would be against group-neutral university policy to even investigate a professor for engaging in offensive rhetoric against Group B is discriminatory?

[y81]

So maybe the university violated Amy Wax's rights. (I actually agree that they did.) It doesn't follow that now the university has an affirmative duty to violate the rights of anyone who annoys the Jews. This is what Prof. Volokh has called "censorship envy" and it is destructive to freedom of expression. If Amy Wax has a claim, let her bring it.

[wvattorney13]

That's not the claim. The plaintiffs are claiming that the university is violating their rights by failing to do X. The university responds that they can't possibly do X because to do so would be against the law.

The plaintiffs counter that the university doesn't believe its own argument because it did X to Amy Wax.

The plaintiffs are not arguing that the "university violated Amy Wax's rights" so go ahead and violate the rights of people we don't like. They are arguing that the university does not consider what it did to Amy Wax as a violation of rights, therefore what the plaintiffs propose would not be a violation of rights, at least how the university sees it so their protests are illegitimate.

[ReaderY]

Penn is a private institution, so it doesn’t have to follow the First Anendment. Because of that, it’s at least an argument to say that if you fire people for racism for offending black people but don’t fire them for racism for offending Jews, you are engaging in racial discrimination.

I’m not sure it’s a valid argument because you’re firing them not because of their race but because they say things the university doesn’t like, so the university may well have a First Amendment defense to a discrimination claim that would defeat it. But this defense, if successful, would move things in the direction opposite to your position. You say Penn can’t fire professors because of what they say. But the defense would establish that Penn could, so far as discrimination law is concerned, fire anyone it wants because of what they say.

[y81]

No, anti-discrimination law does not give the federal government power to force private institutions to violate people's rights to free expression. The government may not coerce private actors to do what it cannot do directly.

It is, for instance, well-established that Christian institutions may forbid the teaching of un-Christian doctrine. They don't have a duty to be even-handed and forbid the teaching of anti-Muslim doctrine as well.

[Gregory]

Yeah, I'm frustrated by Penn's treatment of Amy Wax, and certainly there's a colorable claim that different viewpoints are being afforded different treatment, but the fact that that fanciful cause of action is the *strongest* one plaintiffs have on offer here is, uh, maybe a sign that they're more interested in press releases than actual legal relief.

[wvattorney13]

I don't read it as him advancing anything. He is just noting that the plaintiffs raised claims that have to be addressed by the judge, not summarily dismissed by simply mischaracterizing them.

[bernard11]

Bernstein continues to advance (item 6) the insupportable claim that one suppression of speech not only permits, but requires, the suppression of other speech.

I don't think the OP has to be read that way. It may well be that he is simply criticizing Penn for inconsistency. That looks like a significant problem in general, and especially here.

"We punish speech critical of some ethnic groups, but have no problem with criticism of others." Seems wrong.

[Roger S]

Judge Goldberg. Connect the dots for us.

[Frank Drackman]

It’s Judge Mitchell “S” Goldberg, that the”S” stands for “Self Hating Jew” should have been a clue.

Frank

[TwelveInchPianist]

I didn't even know she left the Times.

[bernard11]

Judge Goldberg. Connect the dots for us.

Easy. You're an antisemitic asshole.

Still living off your mother's stupidity, are you?

[Darth Buckeye]

I watch my fellow Jews leave the faith for a new faith, progressivism. Goldberg probably is not a practicing Jew. His children or grandchildren probably won't identify as Jewish.

[Sarcastr0]

How antisemitic of you.

[SRG2]

I suspect you'd find that much din is progressive by the standards of the day - and certainly the Jewish attitude to abortion is categorically not conservative. So it's perfectly possible to be an authentic and observant Jew, and progressive.

There are meshuggeners on all sides. Using your criteria but wrt other laws, Steven Miller has also left the faith, for the faith of Sinat Chinam.

[DDHarriman]

There have always been two large groups of Jews.

The secular and the religious.

The secular group is where the globalists, marxists, fascists, censors etc come from. Globalists who demand multiculturalism for everyone except the Jew.

The religious is filled to the brim with Zionists and where the child sacrifices, blowing mosques and churches, and killing Palestinian children come from. Nationalists who demand multiculturalism for everyone except Israel.

[SRG2]

The religious is filled to the brim with Zionists

Shows that you know fuck-all about Jews.

[bernard11]

Srg2,

Have you not figured out yet that DDH knows fuck-all about anything?

Just ignore the asshole. Hard to do, I know, but still the best plan.

I do wish that EV could figure out some way to bar the more dysfunctional commenters. The blog would improve tremendously.

[SRG2]

Looks like I'll be wearing my boarding school yarmulke at Penn Relays again...

[y81]

I wore an Israeli flag button on the Columbia campus every day I had class last year, but I regret to say that no one said anything hostile. Probably because the situation does not conform to Bernstein's lurid imaginings.

That said, a couple of cute, young, presumably Jewish girls expressed their appreciation, so wearing the yarmulke may get you something.

[Matt F]

Plaintiffs’ best course of action seems to be filing a new Title VI and Breach of Contract complaint per the judge’s invitation, and abandoning the dismissed claim on “Unfair Trade Practices and Consumer Protection Law”. If they see the “Title VI case” as primary, as in the title of this post, then a new complaint would be even quicker than a quick reversal, and less antagonizing.