Federal Judge Hears Arguments in Motion to Dismiss Antisemitism Suit

BOSTON — The attorneys representing six Jewish students in their antisemitism lawsuit against Harvard asked a federal judge on Wednesday to deny the University’s motion to dismiss the case because a jury trial is needed to investigate its alleged failure to combat “severe and pervasive” antisemitism.

The two-hour hearing — which was largely a subdued and civil affair — ended anticlimactically as the judge, Richard G. Stearns, declined to immediately rule on the motion and did not indicate which way he was leaning.

“Gonna have to give me some time to finish thinking it through,” Stearns said.

Stearns largely remained quiet throughout the hearing, only intermittently asking brief questions of lawyers on both sides. Even as lawyers for the plaintiffs slammed the University over its alleged failure to address antisemitism on its campus, Stearns seemed primarily concerned with clarifying whether the plaintiffs were claiming that Harvard directly perpetuated the antisemitism or if it simply failed to take “sufficient remedial measures.”

The hearing came more than six months after Alexander “Shabbos” Kestenbaum, a recent Harvard Divinity School graduate, and five other anonymous Jewish students sued the University in January.

The original 77-page complaint alleged that Harvard violated Title VI by “enabling” antisemitism on campus and that Jewish students were treated as “second-class citizens in the Harvard community” who were denied their right to express support for Israel.

Marc E. Kasowitz, a lawyer for the plaintiffs, argued during the hearing that Harvard “has not just not stopped, but has enabled” antisemitic speech, which he described as calling for “death” and “destruction.”

Another lawyer for the plaintiffs, Mark P. Ressler, repeatedly accused the University of doing “nothing” to address complaints made by Jewish students of intimidation and harassment.

Seth P. Waxman ’73, the lawyer who recently defended Harvard before the Supreme Court in a case challenging its race-conscious admissions practices, served as the University’s primary lawyer at the hearing.

Waxman spent a significant amount of time disputing the plaintiffs’ accusations that Harvard had failed to respond to antisemitism on its campus.

In particular, Waxman pointed to multiple statements condemning antisemitism from University leadership, the suspension of a pro-Palestine student organization, and requests from top administrators that the anonymous social media platform Sidechat increase its efforts to moderate antisemitic content.

He also noted the disciplinary action taken against staff and students involved in complaints of antisemitism. Waxman cited an investigation into Harvard Kennedy School lecturer Marshall Ganz, the firing of former staff member Gustavo “Gus” Espada ’96, and the criminal prosecution of two graduate students in connection to an October “die-in” protest.

Waxman told the judge that the case should be dismissed because the lawsuit lacks subject matter jurisdiction and fails to state a claim upon which relief can be granted.

In order to seek injunctive relief, Waxman argued, “individualized participation” is required of the plaintiffs — of whom only Kestenbaum is identified by name — in order to determine that they were indeed subjected to antisemitic harassment and attacks.

Recent Divinity School graduate Alexander "Shabbos" Kestenbaum, pictured protesting a pro-Palestine rally in May, is among the six plaintiffs in the case. By Addison Y. Liu

Waxman also argued that Harvard did not exhibit “deliberate indifference” to attacks on students under Title VI of the Civil Rights Act of 1969, which prohibits discrimination on the basis of race, color, or national origin by institutions that receive federal funding.

Harvard’s efforts to address antisemitism — like the recent recommendations made by a presidential task force — demonstrate that the University falls short of the court’s historically high standard for deliberate indifference, according to Waxman.

Ressler, however, claimed that Harvard’s initiatives to tackle campus antisemitism, including former University President Claudine Gay’s formation of an antisemitism advisory group, were simply intended to quiet critics. He also said the University’s disciplinary proceedings for pro-Palestine student protesters were a “sham.”

Ressler referenced Harvard’s recent decisions to allow 11 seniors to graduate after being initially barred from doing so over their participation in the pro-Palestine encampment and the reversal of suspensions for five student protesters.

At one point, Stearns asked the plaintiffs to explain whether they were referring to “Harvard as an institution” or Harvard’s “vicarious responsibility” for its students and affiliates.

“Both,” Kasowitz replied.

Stearns also asked Kasowitz to clarify whether the complaint alleges Harvard did nothing at all to combat antisemitism, or whether the University’s actions were inadequate. Kasowitz said he was arguing the latter.

“We appreciated the opportunity to explain, at today’s hearing, the severity of the hostile environment at Harvard, which is the result of both Harvard’s deliberate indifference to the harassment of Jewish students and direct discrimination through Harvard’s selective application of its own policies when Jewish students are involved,” Ressler wrote in a statement.

“What we heard from Harvard today, however, was the same doublespeak it used in its filings: that, on the one hand, there is no antisemitism problem, while on the other, that only Harvard should be trusted to fix the problem without court intervention,” he added.

Waxman spent most of the hearing impressing the judge with his extensive references to Supreme Court cases and refuting claims from the plaintiffs’ lawyers.

At one point, Waxman disputed a claim by Kasowitz that the University never investigated a pro-Palestine protest that led some Jewish students to hide under their desks at the Harvard Law School.

The plaintiffs’ lawyers also claimed that some members of Harvard’s faculty have engaged in “verbal, and in some instances physical, attacks against Jewish students with absolute impunity.” Waxman, however, told the judge that he had no idea which physical attacks the plaintiffs were referring to.

Kasowitz also argued that Harvard took less action in response to harmful speech against Jewish students than it would have taken with any other group of students.

Kasowitz claimed that in almost any other case, students would have faced disciplinary action for their statements, adding that if someone on Harvard’s campus called a student “fat,” they could be suspended or expelled.

Harvard spokesperson Jason A. Newton wrote in a statement that “Harvard has and will continue to be unequivocal — in our words and actions — that antisemitism is not and will not be tolerated on our campus.”

“We remain committed to combating hate and to promoting and nurturing civil dialogue and respectful engagement,” he added.

As the hearing approached the two-hour mark, Stearns quipped from the bench that the lawyers needed to wrap up their arguments as this was not the only hearing on his schedule involving a university.

“I’ve got MIT later,” Stearns said.

—Staff writer Elyse C. Goncalves can be reached at elyse.goncalves@thecrimson.com. Follow her on X @e1ysegoncalves or on Threads @elyse.goncalves.

—Staff writer Azusa M. Lippit can be reached at azusa.lippit@thecrimson.com. Follow her on X @azusalippit or on Threads @azusalippit.