Students should be given the legal right to sue individual officials who refuse to deal with the problem.
Jewish students at nine leading American universities testified on Feb. 29 at a bipartisan “roundtable” conducted by the House of Representatives’ Education and Workforce Committee. The subject was campus antisemitism. They told appalling stories of Jew-hating harassment, discriminatory treatment and violence being tolerated and encouraged by university administrators at Harvard, MIT, Tulane, Rutgers, Columbia, the University of Pennsylvania, Cooper Union, Stanford and the University of California, Berkeley.
All the student witnesses said they pleaded with responsible university officials in vain. Their claims that it was “open season on Jews on our campus,” they reported, “fell on deaf ears.”
At the conclusion of the hearing, chairwoman Virginia Foxx (R-N.C.) asked the public to suggest how Congress might address this evil.
The instinctive response is to blame and sanction the institutions involved for failing to deal adequately—if at all—with antisemitism on campus. Some of the universities have been sued by Jewish students and frequent calls are made to withhold future federal funding from culpable academic institutions.
The universities may, as a general proposition, be guilty. They should be challenged in court. But it is the individual responsible officials whose conduct controls whether antisemitic incidents are tolerated on campus.
Lawsuits and administrative actions against the universities face significant legal obstacles. Universities retain costly top-tier counsel and mount defenses to protect their federal funding, which is commonly preserved by settlements that have meager practical effect.
So, here is how to respond to Rep. Foxx’s invitation to propose legislation:
Campus antisemitism can be prevented if those who have the duty and power to enforce a university’s policy exercise this power in good faith. Thus, Congress should impose federal legal liability on individual officials at federally funded institutions who have the authority to enforce preventive measures but knowingly fail to do so.
Congress should enact a law that entitles any student at a federally funded institution who has suffered antisemitic harassment or violence, complained to university officials, and been ignored to sue the relevant officials personally in a federal court. The prospect of a personally adverse court judgment against university officials would provide relief at the impacted institution and effectively deter similar conduct elsewhere.
The federal law should include the following:
- Address the Unique Danger of Antisemitism
Today, popular thinking adopts the false assumption that all irrational hatred against any class of human beings can be addressed with identical legal remedies. Antisemitism, however, is unique. It differs from Islamophobia and similar hatreds. Congress should explicitly recognize in any new law that antisemitism on university campuses warrants a unique legal response. Just as Congress recognized that antisemitism is a distinct evil that justifies creating and funding an ambassador to combat it internationally, Congress should provide a remedy for campus antisemitism in the United States.
- Subject Responsible Officials at All Institutions That Receive Federal Funds to a Federal Legal Duty to Prevent Antisemitism
It is well-established that the federal government has broad jurisdiction to impose legal duties on institutions that receive federal funds. This power gives it the authority to define what those who exercise the institution’s authority may or may not do. Federal law should explicitly provide that anyone employed by a federally financed educational institution who has the authority to regulate campus conduct must, if notified, act to prevent antisemitic harassment, violence and discrimination.
- Authorize Any Victim of Campus Antisemitism to Sue a University Official Who Has Failed to Take Reasonable Available Measures
Jurisdiction to initiate a lawsuit to enforce a federal right in a federal court should be defined by the federal statute. Any of the nine students who testified to the House committee who was personally threatened or otherwise harmed by campus antisemitism, and whose complaint was ignored by university officials, should be authorized to proceed in federal court in a lawsuit against those officials who were notified and failed to take measures to prevent the recurrence of antisemitic behavior.
- Declare That Antisemitic Harassment Is Not Constitutionally Protected Speech
The former presidents of Harvard and the University of Pennsylvania resigned after being poorly advised by lawyers that calls for the genocide of Jews are constitutionally protected speech. Congress should definitively declare that terroristic threats—even if not accompanied by conduct—are not entitled to First Amendment protection.
- Specify That the Court May Only Order Equitable Relief
The merits of a lawsuit under a new federal law should be decided by a judge, not by jurors who might—if unsympathetic—nullify the federal law. If money damages are authorized, the Seventh Amendment would compel trial by jury if requested by the defendant. A judge who finds after trial for the plaintiff should be authorized to order only that the defendant’s employment be terminated or that the official’s conduct be otherwise regulated.
- Exclude the Employing Institution From Participating in the Lawsuit
The defense of litigation authorized by the proposed law should not be managed by the institution. Nor should the institution be permitted to finance the defense. Although the law cannot realistically prevent financial assistance from outside sources to either party to the lawsuit, it should forbid the institution from defending the accused official.
- Authorize the Court to Impose Attorney-Fee Sanctions on Frivolous Claims or Defenses
The proposed law should discourage the initiation of lawsuits by students who may have personal grudges against institution officials or who might sue without having experienced any real personal harm. Existing law (42 U.S.C. 1988(b)) authorizes a judge to award attorneys’ fees to prevailing plaintiffs or defendants under standards set by decisions of the Supreme Court.
Shifting the focus of court attention from the culpable institutions to the individuals who implement the universities’ policies should reduce or eliminate the worst forms of campus antisemitism.
Nathan Lewin is a Washington, D.C., attorney with a Supreme Court practice who has taught at leading national law schools including Harvard, Columbia, Georgetown and the University of Chicago.
