Harvard’s Politics Likely Irrelevant to Israeli Professor’s Suit

Harvard University and the response of its former President Claudine Gay to antisemitism on campus in 2023 aren’t relevant to an Israeli professor’s breach of contract lawsuit over his tenure denial, a Massachusetts judge suggested Wednesday.

“I’m just worried it’s going to be a giant distraction,” Judge Christopher Barry-Smith said during a hearing on what evidence can be brought up in an upcoming trial in the Massachusetts Superior Court, Middlesex County.

Shmuel Rubinstein, a professor of applied physics at Harvard, claims the university breached its contract by unlawfully denying him tenure. Rubinstein said the university broke its own tenure policies in reviewing his application, and accused a computer science professor of defaming him.

Harvard has been under scrutiny from alumni, students, and lawmakers over how leaders handled rising antisemitism on campus in the wake of Hamas’s attack on Israel and the retaliatory war in Gaza.

The university is also navigating congressional inquiries and federal lawsuits. Gay, the university’s first Black president, resigned this January following allegations of plagiarism and her highly-criticized testimony in front of the US House Committee on Education and the Workforce.

Rubinstein said he wants jurors to be able to consider the recent conduct of Harvard and Gay when they evaluate whether his tenure process complied with university policies. Gay was a dean when he applied for tenure in 2018.

“I have no interest in distracting the jury,” said Monica Shah, a partner for Zalkind Duncan & Bernstein LLP who represents Rubinstein. But thecultural differences between academia in Israel and America are likely to be discussed at trial, so “I do think it would be fair game to examine the witness in a limited way about Harvard’s admission that it has had institutional antisemitism pervade the university,” Shah said.

That argument makes it “start to sound like this is a discrimination case, and it’s not,” Barry-Smith said. “It’s a breach of contract case.”

“If Professor Rubinstein or his attorneys had a hunch that bias against Israelis underlied this decision making, it would have surfaced in the pleadings in the case in advance of 2023 or 2024 and it did not,” Barry-Smith said.

It appears as though Rubinstein is capitalizing on recent scrutiny of antisemitism at Harvard as an “unexpected potential way to undermine Harvard witnesses,” Barry-Smith said. “I don’t think what happened in 2023 and 2024 should matter in this case,” the judge added.

“What the plaintiff is trying to do here by drawing this issue into this case is improper. It’s an attempt to appeal to the sympathies of the jury,” said Daryl Lapp, a partner for Locke Lord LLP who represents Harvard.

Barry-Smith also said bringing the plagiarism allegations against Gay to jurors would in effect impose “a mini trail” on her own research, which “sounds like a waste of time to me.”

“This is nothing but a shifting set of arguments that are about trying to get in front of a jury that she was accused of plagiarism,” Lapp said. “This is not how you impeach a witness.”

Barry-Smith said he’s likely to allow Harvard’s motion in part that would limit what evidence can be presented at trial.

The case is Rubinstein v. President and Fellows of Harvard Coll., Mass. Super. Ct., No. 2081-cv-00609, trial conference 8/7/24.