Harvard Defends Its Handling of ‘Antisemitism Problem’ in Court

A lawsuit accusing Harvard of discrimination should be dismissed because the school hasn’t been deliberately indifferent to the welfare of its Jewish students in the wake of Hamas’ attack on Israel, Harvard’s attorney told a Massachusetts federal judge Wednesday.

Harvard has acknowledged its “antisemitism problem,” created an antisemitism task force, and investigated and disciplined students involved in an encampment on Harvard Yard, Seth Waxman, a partner at Wilmer Cutler Pickering Hale and Dorr LLP, said during a hearing on Harvard’s motion to dismiss at the US District Court for the District of Massachusetts.

“Harvard is clearly wrestling with these deeply troubling issues and events, the very opposite of deliberate indifference,” Waxman, who served as US Solicitor General in the Clinton administration, told Judge Richard Stearns.

Alexander Kestenbaum, a Harvard Divinity School student who has since graduated, and a coalition of unindentified Jewish students brought a lawsuit against the university in January. They claim Harvard fails to prevent antisemitism and selectively enforces free speech policies.

“Harvard is discriminating against its Jewish students in not protecting them from outrageous speech made against them—speech calling for death to Jews, speech calling for death and destruction of the Jewish homeland, which Harvard has not just not stopped but has enabled,” said Marc Kasowitz, a partner for Kasowitz Benson Torres LLP who represents the students.

The students argue Harvard’s deliberate indifference to antisemitism on campus violates Title VI of the Civil Rights Act of 1964, which prohibits discrimination by entities receiving federal funding.

“Are you saying that Harvard has done nothing at all, or what they’ve done is inadequate and we don’t have assurances that it’ll ever reach the state that you wish?” Stearns asked Kasowitz.

While the school has responded, “hat they’ve done has been woefully inadequate and will not reach the level that Title VI requires.” Kasowitz said.

Kasowitz said Harvard has applied a double standard with its response to discrimination complaints against Jewish students compared to other students.

If you “tell someone walking on the campus that they’re fat, you will be suspended or thrown out of school permanently,” Kasowitz said. He alleged that use of slurs against Jewish people on campus would not result in the same punishment.

The school year following the Oct. 7 attacks was the first time in memory “that a raw, emotional issue has pitted large segments of the university against each other” with “members of Harvard’s Jewish community on both sides,” Waxman said.

“We know that we need to be more vigilant and do better,” and “this is an issue that Harvard has to deal with sensitively,” Waxman said, denying the existence of a double standard.

The case is Kestenbaum v. President and Fellows of Harvard Coll., D. Mass., No. 1:24-cv-10092, hearing 7/24/24.