By Samantha Harris
Saturday, August 10, 2024
On Tuesday, a Massachusetts federal judge refused to dismiss a lawsuit alleging that Harvard
University had been deliberately indifferent to antisemitic harassment on
campus and had breached its contract with Jewish students by failing to enforce
its disciplinary policies against their harassers. The judge in Kestenbaum
v. Harvard held that the plaintiffs had plausibly alleged that Harvard had
stood by as Jewish students were subjected to “severe, pervasive, and
objectively offensive harassment,” had refused to “evenhandedly administer its
policies,” and has, ultimately, “failed its Jewish students.” The court ruled,
in other words, that Harvard’s hypocrisy may be unlawful.
As a proudly pro-Israel Jew who has dedicated my career
to fighting for free speech on campus, the past year has been surreal and
distressing. I have spent the past 20 years of my career trying (and largely
failing, short of taking them to court) to get universities to respect the
right to free speech. So hearing the presidents of major universities testify
before Congress about their strong institutional commitments to free speech
should have been music to my ears. Instead, I just felt sickened by their rank
hypocrisy. The only thing that seemed to motivate these institutions to finally
proclaim their fealty to First Amendment principles were calls for genocide
against Jews. It was painful.
Take Harvard. In September 2023, just a month before
Hamas’s horrific massacre of Israeli civilians, the Foundation for Individual
Rights and Expression (FIRE, where I worked from 2005 to 2020) gave Harvard the
“worst score ever” in its college free-speech rankings.
According to FIRE, Harvard’s offenses included terminating multiple scholars
for expressing personal opinions out of step with university orthodoxy;
revoking the acceptance of a conservative student for statements he made on
social media at age 16; and disinviting a feminist scholar over her views on
trans issues.
Yet in the wake of October 7, Harvard not only loudly and
proudly stood up for the free-speech rights of those who celebrated Hamas’s
attack on Israel, but, according to the complaint filed in Kestenbaum v.
Harvard, protected students who harassed, intimidated, and even physically
assaulted Jews. For example, a Harvard Law student who allegedly assaulted a
Jewish student at an October 18 “die-in” was permitted to remain a teaching
fellow in a first-year civil-procedure course. Harvard also allegedly allowed
pro-Palestinian protests in areas where it denied pro-Israel students the right
to protest and provided round-the-clock security for a Palestinian student
group’s “wall of resistance” while telling a campus Jewish organization that it
needed to remove a Hanukkah menorah from campus each night to prevent it from
being vandalized.
Given the intersection of my personal (observant,
pro-Israel Jew) and professional (free-speech lawyer) identities, I get asked
on a near-daily basis what I think about the issue of antisemitism on campus.
And my answer is always the same. The problem is not that
university administrators are allowing anti-Israel students to engage in
offensive speech. The price of living in a society that upholds the right to
free speech is often putting up with speech that one finds offensive and even
hateful. But I firmly believe, as scholar Jonathan Rauch has put it far more eloquently than I ever could, that robust
protections for free speech protect disfavored minorities far more than harm
them. The problem is that when it comes to free speech, university
administrators are hypocrites. They tolerate speech about Jews that they would never
tolerate about other minority groups. They persecute some while celebrating others. They protect some from genuine
harassment while throwing others to the wolves.
With Kestenbaum v. Harvard, it looks like this
institutional hypocrisy may finally have met its match. The case is far from
over — a motion to dismiss is made at an early stage of litigation, before any
discovery has taken place. But the judge’s ruling means that, if the evidence
bears out what is alleged in the complaint, Harvard may be forced to end the
inconsistent and biased enforcement of its policies and to respect the rights
of all students and faculty.
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