NYU Prof Moves to Intervene in NYU Antisemitism Case – Fears Could Be Wrongly Labeled “Antisemitic”

2024-02-09 12:00:36

As we recently reported, NYU Slammed with Massive Antisemitism Lawsuit, three students at NYU have sued the school in federal court over allegations of blatant antisemitism that the student Plaintiffs claim were either tolerated or encouraged by NYU:

Three Jewish NYU students have now sued NYU in federal court in Manhattan for allegedly gross antisemitism. From the Complaint’s “Preliminary Statement“:

The age-old virus of antisemitism is alive and well at New York University. This case arises from NYU’s egregious civil rights violations that have created a hostile educational environment in which plaintiffs and other Jewish NYU students have been subjected to pervasive acts of hatred, discrimination, harassment, and intimidation. For years, NYU—acutely aware of ongoing and disgraceful acts of anti-Jewish bigotry—has reacted with, at best, deliberate indifference, refusing to enforce its own anti-discrimination and conduct policies that it readily applies to protect other targets of bigotry, and instead fostering an environment in which students and faculty members are permitted to repeatedly abuse, malign, vilify, and threaten Jewish students with impunity. Regularly confronted with such genocidal chants as, “Hitler was right,” “gas the Jews,” “death to kikes,” and “from the river to the sea,” and other abuse, plaintiffs not only have been deprived of the ability and opportunity to fully and meaningfully participate in NYU’s educational and other programs, but they have suffered and have been put at severe risk of extreme emotional and physical injury.

[emphasis added]

Bloomberg picked up the story: NYU Sued by Students Over ‘Egregious’ Antisemitism on Campus

Three Jewish students at New York University sued the school on Tuesday, claiming it failed to protect them from “egregious” antisemitism that has worsened since the Israel-Hamas war began.

The lawsuit, filed in Manhattan federal court, claims the university must take action under Title VI of the 1964 Civil Rights Act, which bars discrimination based on race, color or national origin.

“Mobs of students, often accompanied and encouraged by professors, have been given carte blanche to harass and intimidate NYU’s Jewish population,” according to the complaint. “As a result of NYU’s actions and inactions, antisemitism at NYU now thrives like never before.”

An NYU spokesperson said the university looks forward to setting the record straight and prevailing in court.

“The assertions in this suit do not accurately describe conditions on our campus or the many steps NYU has been taking to fight antisemitism and keep the campus safe,” spokesperson John Beckman said in an emailed statement.

The explosion of antisemitism and Islamophobia on college campuses has led to renewed interest in whether students can use Title VI to force universities to do more to protect them. President Joe Biden’s administration has vowed to use the law in the face of campus threats and violence….

Since Oct. 7, many students and faculty have “openly and enthusiastically” endorsed Hamas, the complaint says….

As we reported, the Complaint in the federal lawsuit was massive, spanning 83 pages and 281 paragraphs. It asserted six different causes of action, including Title VI, the federal statute prohibiting discrimination by entities receiving federal funding, New York State law, and common law breach of contract.

In early December, the lead Plaintiff in the case, Bella Ingber, testified in Congress about her experiences with antisemitism at NYU:

Fortunately for Bella and her two co-Plaintiffs, New York City heavy hitter litigation law firm Kasowitz Benson Torres, whose tagline is: “Creative. Aggressive. Relentless.,” and named partners Marc Kasowitz and Daniel Benson, among others, are representing the Plaintiffs. I highly recommend watching Kasowitz’s firm video available here.

In the original post, I ended by stating:

Senior federal district court judge Paul A. Crotty has been assigned to the case. Judge Crotty was appointed to the bench by President George W. Bush in 2005.

I predict NYU is in for the lawsuit of its life.

In an updated report, filed after Kasowitz sued Harvard on behalf of Jewish student Plaintiffs there, I analyzed the cases against NYU, Penn, and Harvard:

These three lawsuits have “legs” as we say in the business; i.e. they’re not going to dismissed or settled without major, campus-changing actions taken by each university, which seems impossible at this point. In the NYU lawsuit, NYU filed a motion for a conference with the Judge to discuss their expected Motion to Dismiss. NYU’s grounds for dismissal, as stated in the letter, are that NYU has instituted a 10-Point Plan to combat antisemitism, and have taken other actions to ameliorate the situation, including opening a “Center for the Study of Antisemitism.”

The NYU Plaintiffs are having none of it. See these excerpts from the Response filed by Kasowitz on behalf of the Plaintiffs:

NYU says that because it plans to open a “Center for the Study of Antisemitism” next fall and has issued a (patently inadequate) “10-Point Plan”—“plans” and “processes” which NYU says are “evolv[ing]”—this Court must dismiss plaintiffs’ claims or must compel plaintiffs to wait for some unspecified period to see if the hostile educational environment on NYU’s campus is remedied. Meanwhile, plaintiffs are forced to run a daily gauntlet of unconscionable harassment on campus—harassment NYU would not tolerate if directed at any other group—where Jewish students are physically and verbally assaulted, subjected to genocidal threats such as “Hitler was right,” “gas the Jews,” and “death to kikes”, and forced to traverse university buildings past students and faculty chanting antisemitic slogans and brandishing antisemitic posters. Incredibly, even as plaintiffs allege that they fear for their physical safety, NYU insists that it is the victim, complaining that allowing this lawsuit to proceed would impose a “hardship on NYU by . . . infringing on the flexibility it needs to function.” (emphasis added)….

NYU’s proposed motion is contrary to controlling … law. Not only would granting the motion deny plaintiffs their right to seek relief, but it would also provide every defendant a roadmap for avoiding or delaying accountability for egregious discrimination by simply announcing “ongoing” “plans” and “processes.” NYU does not, as it cannot, cite any authority justifying such an extraordinary result, and a pre-motion conference would be a waste of the Court’s and the parties’ resources. In any event, plaintiffs intend to file an amended complaint by January 31, 2023, adding plaintiffs and further allegations of recent antisemitic harassment on campus—which only confirm the falsity of NYU’s assurances that it is solving the problem.

[bold emphasis added]

Federal Judge Paul Crotty in the NYU case has set a teleconference with the lawyers for each party down for this coming Tuesday, January 16, to discuss NYU’s expected Motion to Dismiss. I would love to be a fly on the wall at the teleconference, because I predict Judge Crotty is going to indicate to NYU that any such motion to dismiss has little chance of being granted.

In any case, we will keep tabs on all three cases and keep you updated.

Well, I was right. Judge Crotty did not dismiss the antisemitism case against NYU, stating simply that “[t]he parties reported that plaintiffs will amend their complaint and will then propose an agreed upon briefing schedule.”

The Plaintiffs filed their Amended Complaint on January 31, but before they could even file it, non-party NYU Professor Andrew Ross filed a letter motion for a conference with Judge Crotty to discuss his request to intervene in the case:

I file this letter motion to request a pre-motion conference regarding a motion to intervene as a defendant under FRCP [Federal Rule of Civil Procedure] Rule 24(a)….

Plaintiffs ask this Court to order NYU to implement a definition of anti-Semitism so broad that it would end or chill virtually all First Amendment protected criticism of Israel or pro-Palestinian speech by NYU faculty, students and staff, on or off campus….

NYU will not assertively defend Dr. Ross’s interests. Despite the Plaintiff’s dissatisfaction with the university’s efforts, NYU is already applying a definition of anti-Semitism that is extremly [sic] vague and overbroad… NYU has announced a problematic “Zero Tolerance” policy which has already resulted in a significant denial of due process and violation of its own codes and rules.

Against this background, we request permission to move to intervene as of right. This Court is itself a government actor, and granting the exact relief requested by plaintiffs would violate Dr. Ross’s First Amendment rights.

Interestingly, and somewhat humorously, Professor Ross’s Motion for Conference to Discuss his Motion to Intervene is being opposed by both the Plaintiffs in the case and NYU.

From NYU’s response:

Defendant New York University (“NYU” or “the University”) opposes Dr. Andrew Ross’s extraordinary request to intervene as a defendant under Rule 24(a) for the following reasons, among others: because Plaintiffs’ complaint (and impending amended complaint) should be dismissed, intervention will be rendered moot; and intervention is otherwise not appropriate under Rule 24(a). At minimum, the Court should postpone deciding Dr. Ross’s motion until after it resolves NYU’s forthcoming motion to dismiss….

As NYU previously explained, to prevail, Plaintiffs must show that NYU acted with “deliberate indifference” to antisemitic conduct on its campus. But the complaint itself shows the opposite—that NYU responded swiftly and decisively to antisemitic conduct in the wake of the October 7, 2023 terrorist attack in Israel by, for instance, diligently implementing a robust 10-Point Plan to promote the safety and well-being of its students. Dr. Ross’s letter likewise demonstrates that NYU is enforcing its policies that prohibit antisemitism….

Dr. Ross asserts that he is entitled to intervene because this litigation jeopardizes his “personal and academic freedoms.” [T]o the extent Professor Ross claims that he has a “legally protectable” interest in engaging in conduct that violates federal nondiscrimination law, NYU’s existing policies prohibit such conduct, consistent with Title VI….

[emphasis added; citations omitted for clarity]

The Plaintiffs’ opposition, filed by Marc Kasowitz himself, is even more pointed:

The entire premise of NYU Professor Ross’s proposed motion is his speculation that this Court might enter an order “end[ing] or chill[ing]” his First Amendment right to criticize the State of Israel. Contrary to his letter, plaintiffs do not seek, and do not ask this Court, to restrict Ross’s First Amendment rights. Ross’s employer, NYU, however, is a private university not subject to the First Amendment. Moreover, NYU receives federal financial assistance and therefore is barred by Title VI from excluding Jewish or Israeli students from participation in and depriving them of the benefits of their NYU education, or subjecting them to discrimination based on their religion or national origin. NYU has every right—and, under Title VI, it has the obligationto regulate its employees’ speech or conduct in order to prevent or remedy a violation of Title VI….

Ross asserts that NYU will not oppose this Court’s adoption of the International Holocaust Remembrance Alliance (“IHRA”) definition of “antisemitism,” which, he contends, could “harm” his “academic and personal freedoms.” But, again, as a private employer, NYU is perfectly free to adopt that definition, and Ross has no cognizable interest in preventing it from doing so. In fact, as the complaint alleges, NYU already explicitly agreed, in a settlement of prior antisemitism charges over three years ago with the Department of Education, to adopt the IHRA definition—a definition endorsed, in substance and relevant part, by the Trump and Biden administrations. As the complaint also alleges, NYU has abjectly failed to apply that definition (or any other) in ensuring that it complies with Title VI—a failure which, unfortunately, has necessitated this action.

Accordingly, because Ross’s motion would be futile and a waste of the Court’s and the parties’ time and resources, his request for a pre-motion conference should be denied.

[citations omitted; emphasis added]

Unfortunately, Judge Crotty set a teleconference to discuss Professor Ross’s request to intervene for February 13.

In the meantime, as mentioned, the Plaintiffs filed an even more massive, 331-paragraph, 104-page Amended Complaint:

Read the whole thing, of course, but here are a few key paragraphs from the Amended Complaint:

On April 20, 2023, NYU’s Jewish Law Students Association sponsored a discussion “Antisemitism: An Assault on Human Rights and Our Shared Humanity” to educate students on the proliferation of antisemitism. The event was met with the same hatred it was meant to address. For example, outside of the event, “ZIONISTS NOT WELCOME” was chalked in big letters on the sidewalk. And when the lecture began, half the audience rose from their seats and disrupted the speaker with the chants “from the river to the sea, Palestine will be free” and “Zionists are not welcome here.” Jewish attendees at the event were shocked and disturbed by the threats and disruptions. One student reported the incident to Larissa McDowell, the Assistant to the Dean of Students, requesting a meeting with Dean Kendrick, and attaching evidence of the protest. The administration did nothing in response.

NYU’s inaction continued to signal to students and faculty that they could engage in antisemitism at NYU with impunity. For example, on or about May 3, 2023, while a Jewish student was in the NYU Paulson Center hanging posters opposing the growing antisemitic BDS movement on campus, another NYU student harassed her, telling her that she was the “reason why antisemitism is on the rise,” and a “white supremacist,” “fascist,” and “bigot.” The Jewish student filed a harassment report and met with the heads of NYU Student Affairs, NYU Campus Security, and NYU Global Spiritual Life, all of whom assured the student that they would investigate the incident. On May 9, 2023, the student met with Mathew Shepard, Interim Director of the Office of Student Conduct and Community Standards, to report that she was very concerned about seeing her harasser walking around campus. Shepard replied that the incident was not a big deal, and that she should be prepared to see the student again on campus because NYU would not be taking action. In fact, the student did see her harasser on campus again. Having suffered no consequences for his first verbal attack, the harasser began and continues to stalk and harass her on social media….

Following Hamas’s October 7 massacre of Israeli civilians, NYU continued to act with deliberate indifference, opening the floodgates to soaring antisemitic harassment, abuse, intimidation, and violence. NYU students have publicly detailed their fear and trauma in the face of raging and unchecked antisemitism on campus. As [Plaintiff Bella] Ingber stated in an interview, “being a Jew at NYU right now is scary . . . [W]e are seeing an uptick in anti-Israel protests that are turning antisemitic. There are signs that read ‘globalize the Intifada,’ which is a historical call for the extermination of Jews and call for violence against Jews.” Ingber recounted that students are horrified and frightened as chants of “gas the Jews” and “Hitler was right” ring out on campus, and students and professors serve up a “constant contextualization and justification of Hamas’s brutal terror attack at NYU,” both in the classroom and around the school. In a viral video, another student added that “it’s scary being Jewish on campus now because of all this.” In the same video, another student said she would withdraw from NYU the next semester. The antisemitic fervor that has gripped NYU, and NYU’s failure and refusal to address and ameliorate it, have led some Jewish students to withdraw from NYU already.

[emphasis added]

We will keep you updated on the course of this lawsuit, and the ones against Penn and Harvard.

In the meantime, here is your introduction to Professor Andrew Ross:

 




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