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Everything Wrong with the Legal Complaint Calling Harvard Antisemitic

By Randall L. Kennedy, Contributing Opinion Writer
Randall L. Kennedy is the Michael R. Klein Professor at Harvard Law School. His column runs bi-weekly on Thursdays.

“What’s happening to Jewish students and faculty at several elite campuses is so comprehensive and all-consuming that it can only be described as systemic antisemitism,” wrote New York Times columnist David A. French last week.

In reaching this sweeping conclusion, French relied heavily on a complaint filed in federal court against the President and Fellows of Harvard College. The complaint alleges that Harvard has discriminated against Jews and subjected them to a hostile environment, thereby violating Title VI of the Civil Rights Act.

The plaintiffs assert that Harvard is “a bastion of rampant anti-Jewish hatred and harassment” and denounce what they characterize as the University’s “abject failure and refusal to lift a finger to stop and deter this outrageous antisemitic conduct.”

French urges his audience to read the complaint. I have. I find it to be self-discrediting. It is glaringly tendentious and obviously hyperbolic, and its inattentiveness to important distinctions makes me deeply skeptical of its central claims. Worse, its principal objection — that Harvard has neglected to ban and punish what the complaint deems to be antisemitic speech and expression — poses a direct and serious threat to academic freedom.

French correctly states that “one should always use caution” when evaluating complaints generated by litigation because they only “represent the allegations of one side.” He then proceeds to disregard his own advice by credulously embracing the complaint’s story without qualification.

To be sure, some features of that story, if substantiated, are deeply troubling. Students reportedly disrupted library study and classroom instruction with impunity. Professors reportedly discriminated against Jewish, Israeli, and Zionist students. Administrators reportedly applied rules inconsistently.

But even assuming the accuracy of the complaint’s allegations, do they add up to the hellish nightmare that the plaintiffs’ attorneys depict? Hardly.

The complaint conclusorily characterizes episodic instances of misconduct as a signal of hostile and prejudiced university leadership. But Harvard is a big place with thousands of students, professors, and staff. In the absence of far more evidence and argument than the complaint contains, the documented instances of antisemitic bigotry that it lists ought not be interpreted as signs that the University itself is culpable.

The plaintiffs’ lawyers dig into Harvard’s record for anything that might conceivably contribute to a portrayal of a university awash with animus against Jews. But their careless excavation undermines their aim.

For instance, they point to an incident in May 2018 in which a swastika was discovered on a bulletin board. They declare pointedly that “Harvard took no disciplinary action in response.” But they neglect to mention whether anyone was identified committing the defacement. If the administration couldn’t identify the culprit, it is difficult to see how Harvard was blameworthy. The complaint is dotted with similar obfuscations.

Much more concerningly, the complaint argues that Harvard abets, enables, and contributes to antisemitism because it has declined to ban or punish the expression of certain ideas.

The plaintiffs’ lawyers suggest that any student who supports Hamas or forcefully condemns Israel is necessarily involved in harassing and discriminating against Jews. The complaint argues that mere advocacy of these positions is therefore intolerable and that by permitting such advocacy Harvard discriminates against Jews in violation of federal law.

That logic lays the groundwork for censorship that would grievously diminish the intellectual freedom and vitality that have made Harvard and peer institutions rightly celebrated around the world.

Yes, Hamas is horrendous and its conduct barbarous. But, as professor Nadine Strossen ’72, professor Steven A. Pinker, and a host of other evangelists for academic freedom have bracingly insisted, the university is a place where even the most odious ideas should be refuted, not banned.

The lawsuit against Harvard is part of a campaign to coercively narrow the ideological spectrum of tolerated discussion about the Israeli-Palestinian conflict. The theory of the plaintiffs is that toleration of “antisemitism” is tantamount to establishing an unlawful educational environment. The implications of that theory are frightening. According to the plaintiffs, for example, “anti-Zionism is antisemitism.”

Given legal force by the courts, that proposition would expel from discussion a large body of work by serious intellectuals, including writings by Jewish anti-Zionists.

I am concerned that so many Jewish members of the Harvard community feel distress, and I am disgusted by bigotry of all forms. Any harassment, threats, or assaults targeting Jews on the basis of their identity ought to be repudiated by all.

Revulsion against antisemitism, however, does not justify the institutional slander perpetrated by the authors of the complaint against Harvard. Nor should revulsion against antisemitism be allowed to impinge upon academic freedom.

The lawsuit against Harvard seeks to make censorship of ideas by the University into a policy required by federal law. One can only hope that Harvard will succeed in convincing the judiciary to reject that awful, dangerous suggestion.

Randall L. Kennedy is the Michael R. Klein Professor at Harvard Law School. His column runs bi-weekly on Thursdays.

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