NYU Settles Anti-Semitism Case

New York University agreed to take a number of actions to settle the first civil rights probe under Trump's anti-Semitism executive order. But some see risk to free expression on campus.

October 2, 2020
 

In what’s believed to be the first case that’s come up since President Donald Trump’s executive order last year aimed at addressing anti-Semitism on campuses, the Education Department and New York University have settled a complaint that alleged NYU hasn’t done enough to prevent “a hostile environment” for Jews on the campus.

The settlement, in which NYU acknowledged no wrongdoing, and the Education Department’s decision to take on the case was praised by some for recognizing what some believe to a contemporary form of anti-Semitism, in which criticism of Israel goes beyond opposing its policies to opposing its very existence.

A lawyer representing a Jewish Mexican NYU graduate who brought the complaint said the settlement could have wide-ranging implications affecting how universities handle campus debates over Middle East policy, to the point of disciplining students. The settlement also raised concerns from some advocates of campus free speech that it could stifle criticism of Israel on campus.

Under the agreement to settle the department’s investigation of the complaint, the university, among other things, agrees to add discrimination based on shared ancestry and ethnic characteristics, including anti-Semitism, to its nondiscrimination and antiharassment policy; address and ameliorate such discrimination on campus, including by student groups; and see that the president, Andrew D. Hamilton, issues a statement that the university will not tolerate that form of discrimination.

The department, though, did not find any wrongdoing, and the university in the settlement does not acknowledge having violated civil rights laws.

“We are pleased that the U.S. Department of Education has decided to end its review without finding any wrongdoing by NYU,” said NYU spokesman John Beckman. “NYU has long been understood as a place that is welcoming to and supportive of members of the Jewish community. For that reason, the university has gladly agreed to several steps that would bolster our long-standing commitment to opposing and responding to anti-Semitism.”

An lawyer for the former student and the university disagreed over the implications of the settlement. A key, said Neal Sher, one of the attorneys who handled the complaint on behalf of Cojab, is that under the settlement the university, like Trump’s executive order, adopts the definition of anti-Semitism from the International Holocaust Remembrance Alliance, a group that combats anti-Semitism globally.

The definition, he said, includes a list of various examples of contemporary anti-Semitism, including “denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.”

The adoption of the definition is significant as part of a nearly two-decades-long process of specifying what is meant under Title VI of the Civil Rights Act of 1964, which bars colleges from receiving federal funds if they discriminate based on race, color or national origin.

While that does not explicitly include religious beliefs, several guidances, including one from the Department of Education's Office for Civil Rights issued in 2010, noted that harassment against members of a religious group “triggers a school’s Title VI responsibilities when the harassment is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members’ religious practices.”

Trump’s executive order expanded that to include the International Holocaust Remembrance Alliance’s definition.

Trump’s move was significant, said Alyza Lewin, president of the Louis D. Brandeis Center for Human Rights Under Law, because college administrators have viewed anti-Semitism narrowly, limiting it to such things as painting swastikas on campus or targeting someone for wearing a yarmulke.

It does not recognize how fundamental the existence of Israel is to the faith of Jews, and that calling for its end is hurtful and anti-Semitic, Lewin said. Adopting the broader definition, she said, “recognizes what is anti-Semitism today.”

However, Beckman said in a statement that in agreeing to the settlement, the university did not agree to using the examples of anti-Semitism in the IHRA definiton, and only agreed to a separate part of the IHRA definition. "Instead, [NYU] will devise its own examples to implement the new policies and, in a statement, will affirm its long-held commitment to academic freedom and free speech," Beckman said. But Sher disagreed that's what the settlement says, arguing the defintion of anti-Semitism that NYU agreed to implicity includes the examples like  the right of self-determination for Jews.

The April 2019 complaint by Adela Cojab, then an NYU senior, alleged that she suffered “two years of extreme anti-Semitism on the NYU campus which has created an intolerable and unlawful hostile atmosphere for Jewish students.” The complaint centers around the university’s handing of the campus chapter of a group called Students for Justice in Palestine.

The group’s chapters have hosted controversial events and programs such as those marking "Israeli Apartheid Week," and they have been heavily involved in the boycott, divestment and sanctions movement against Israel. The Anti-Defamation League, a pro-Israel group that opposes anti-Semitism, states in a profile of SJP on its website that chapters of the group "disseminate anti-Israel propaganda often laced with inflammatory and at times combative rhetoric" and that they "regularly demonize Jewish students who identify as Zionists or proud supporters of the State of Israel."

Last year, a New York State judge ordered Fordham University to recognize a chapter of Students for Justice in Palestine as a university-sanctioned club after the dean of students, Keith Eldredge, rejected it.

Cojab's complaint alleged that in April 2018, SJP tried to shut down a celebration of Israel’s 70th birthday in Washington Square Park, which is surrounded by the NYU campus, by encouraging passersby to file a noise complaint. The complaint also alleged that SJP members wiped their feet on and stomped the Israeli flag at the celebration. An SJP member allegedly also grabbed the microphone from a pro-Israel student who was singing “Hatikvah” -- Israel’s national anthem -- before shouting, “Free Palestine, end the occupation.”

Sher said the university should have issued a statement that such conduct violated the university’s policies. But instead, the complaint said NYU -- "in an amazing act of 'chutzpah'" -- gave the group a Presidential Service Award, though Hamilton later wrote in an op-ed in The Wall Street Journal he wasn’t consulted about giving the group the award. He wrote he wouldn’t have supported it “because SJP’s behavior has been divisive.”

Sher said that if the group or others violate the campus’s new policies under his interpretation of the settlement, they should be disciplined.

“If groups continue to run afoul of the anti-Semitic prohibition and continue to create a hostile atmosphere, they should be thrown off of campus,” he said, likening it to fraternities that violate rules against hazing.

And other universities should pay attention to the Education Department’s decision to investigate the complaint, he said.

“The significance goes beyond just NYU,” he said. “The handwriting is on the wall that other universities would be expected to follow suit or be in a position of losing federal funds.”

Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, a group that advocates for free speech on campuses, said the Education Department should be taking steps make sure colleges aren’t allowing anti-Semitism to occur on campuses. But he worried the definition in the executive order is too broad and could impact free speech “if students are punished or labeled at harassers for making clearly political arguments.”

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