Federal Court Allows Title VI and Contract Claims to Proceed Against Harvard
September 10, 2024
By: Stephen B. Stern
In Kestenbaum v. President, Civil Action No. 24-10092-RGS, 2024 U.S. Dist. LEXIS 139180 (D. Mass. Aug. 6, 2024), the United States District Court for the District of Massachusetts granted in part and denied in part Harvard University’s motion to dismiss, which sought to dismiss the entirety of the complaint brought against it for discrimination against Jewish students.
In Kestenbaum, the plaintiff alleged that more than 30 Harvard student groups issued a joint statement the day after the October 7 terrorist attack in Israel that sought to “hold the Israeli regime entirely responsible for all unfolding violence.” Two student groups organized a “die in” a couple weeks later and, throughout the fall semester, protesting students “harassed and physically assaulted Jewish students.” Throughout the fall semester, various student groups regularly demonstrated on campus, staged classroom walkouts, and engaged in other activities, chanting phrases such as “from the river to the sea Palestine will be free” and “globalize the intifada.” Jewish students also were bullied in classrooms, such as having a professor announce a final exam would be focused on the Israel/Gaza conflict and a teaching assistant being allowed to maintain his position after assaulting a Jewish student on campus. Antisemitic incidents continued into the spring semester according to the complaint, including electronic messages on university-wide group chats. One example included a text that stated, “all of you Zionists” are “[k]illers and rapists of children” and referred to a Jewish student’s nose as “crooked.” Later in the spring semester, an encampment was erected on campus and, as part of the negotiations with students who were violating university policies, Harvard agreed to grant “leniency” at hearings for violations of the school’s policies. A number of other incidents occurred, but the list is too long to include here. Notably, “[t]he ongoing tumult caused many Jewish students to fear for their personal safety and hindered their ability to compete their academic studies.” Harvard’s response essentially allowed the activities to continue and even encouraged a Jewish organization to remove a Hanukkah menorah out of fear that it would be vandalized while it provided 24/7 security to the protesters’ “wall of resistance.”
The plaintiffs filed a number of claims against Harvard, including a claim for violation of Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal funds from discriminating “on the ground of race, color, or national origin.” The statute’s protections apply to Jewish students and the actual or perceived identity of someone as being from Israel. A deliberate indifference claim under Title VI is similar to (but not the same as) harassment claims under Title VII of the Civil Rights Act of 1964 in that it requires a plaintiff to show (1) the plaintiff was “subject to ‘severe, pervasive, and objectively offensive’ . . . harassment”; (2) the harassment “caused the plaintiff to be deprived of educational opportunities or benefits”; (3) the school “knew of the harassment”; (4) the harassment occurred in the school’s “programs and activities”; and (5) the school was “deliberately indifferent to the harassment such that its response (or lack thereof) is clearly unreasonable in light of the known circumstances.” Deliberate indifference requires that a plaintiff allege the school “either did nothing or failed to take additional reasonable measures after it learned that its initial remedies were ineffective.” In looking at the first element, the court looked at the “severity of the conduct, its frequency, whether it [was] physically threatening or not, and whether it interfered with” the student experience and found that these elements were satisfied, as the complaint “vividly” pled “fear-inducing conduct that amounted to more than ‘off-color banter[,]” some of which was “confrontational and physically violent,” leading the plaintiffs to “legitimately fear their repetition.” As for the fifth element, the court rejected Harvard’s argument that, as a matter of policy, it elected not to curtail the protests in the interest of free speech. Although the court found it “dubious that Harvard can hide behind the First Amendment to justify avoidance of its Title VI obligations[,]” the court also noted that it could not definitively decide that issue at this early stage of the litigation. Further, the court found that Harvard’s reaction to the antisemitic incidents on campus as alleged in the complaint “was, at best, indecisive, vacillating, and at times internally contradictory.” One of multiple examples of inconsistency was when Harvard announced in response to a request from Jewish students to hold a gathering at a particular lounge that gatherings in the lounge would be limited to “personal or small group study and conversation[s][,]” but protesters later hosted a “vigil for martyrs” in that very lounge without any push back or punishment from Harvard and, in fact, the vigil was attended by a Harvard Dean. For these reasons, the court found that the complaint stated a deliberate indifference claim under Title VI.
The court then proceeded to analyze the plaintiffs’ direct discrimination claim under Title VI, which the court found was insufficient because the plaintiffs did not adequately allege comparable analogs of Harvard’s enforcement and failure to enforce its policies. In this regard, the court found that the complaint, by way of example, did not identify students who were “canceled” for violating Harvard policies while guest speakers who spewed antisemitic content were allowed to continue.
Despite the insufficiency of the allegations to state a direct discrimination claim, the court found that the plaintiffs had pled sufficient facts to state claims for breach of contract and breach of the implied covenant of good faith and fair dealing. As for the breach of contract claim, the plaintiffs alleged that Harvard failed to follow its Non-Discrimination Policy and provided at least two examples. One instance involved a student who complained about a professor who required students to reach articles “propagating antisemitic claims and Hamas propaganda” and, even though the student met Harvard’s Chief Diversity, Inclusion, and Belonging Officer about the incident, Harvard violated its policy by failing to notify the student of its decision whether to accept or dismiss the complaint. A similar outcome occurred when a student complained about the assault by a teaching assistant. These allegations, coupled with the allegations that Harvard failed to discipline students who engaged in antisemitic conduct were sufficient to support claims for breach of contract and breach of the duty of good faith and fair dealing.
The court’s decision in Kestenbaum is significant because it allowed a lawsuit to go forward against one of the most prestigious schools in America for allegedly failing to take action to stop and prevent antisemitism on campus. This decision is relevant to employers because, even though the standards are somewhat different, they are similar to harassment claims under Title VII and the court’s decision serves as an important reminder about the significance of enforcing policies against discrimination and taking appropriate remedial action when confronted with allegations of discrimination and harassment.