NYU’s terrible, dangerous settlement of campus antisemitism lawsuit
In the months following the horrific October 7 Hamas terror attack and the deadly and catastrophically destructive Israeli military reprisal, American universities have been hit both with waves of pro-Palestinian protest and allegations of that some of the protestors were trafficking in antisemitism — and that universities were tolerating that misconduct.
At NYU, where I teach (I am a professor at NYU’s law school), those allegations escalated quickly. On November 14, 2023, Marc Kasowitz — a New York celebrity lawyer who represented Donald Trump during the Russia investigation and the Trump University fraud lawsuit — filed a lawsuit on behalf of three Jewish NYU students. The 83-page complaint in Ingber v. New York University alleges a long list of statements and actions by NYU students and faculty that, in the plaintiffs’ view, create a climate of pervasive antisemitism at NYU and deny the university’s Jewish students equal access to education in violation of Title VI of the Civil Rights Act of 1964.
Some of the accusations in the Ingber lawsuit, if substantiated, would constitute vile individual acts of antisemitism — although many involve incidents of antisemitic vandalism and graffiti by unknown persons that are not provably connected to NYU’s students or faculty (NYU doesn’t have a campus; most of its buildings are spread through Washington Square in lower Manhattan’s Greenwich Village neighborhood, and NYU has little ability to police this large publicly-accessible area).
However, many of the lawsuit’s allegations of “antisemitism” are in reality complaints about opposition to Israeli policy, about anti-Zionist ideas, or about slogans shouted at rallies that have different meanings for different people. One, “from the river to the sea, Palestine will be free,” can be meant as a call to drive all Jews from Palestine. Or as a call for a one state solution — i.e., a single democratic state where all citizens, Jews and Palestinians alike, have equal rights. Another, “resistance is justified when people are occupied,” can be meant to voice support for Hamas’s October 7 massacre. Or as a more general statement that all people, including Palestinians, have the right to resist occupation — this is a right recognized by UN resolutions and by additional Protocol I to the Fourth Geneva Convention. The Ingber complaint scrupulously avoids these subtleties.
Of course, since October 7 we’ve also seen incidents of hateful speech and conduct aimed at Muslims, both on and off campus — like the Palestinian students shot and seriously wounded back in November 2023 near the University of Vermont, or the 6-year-old Palestinian boy stabbed to death in Illinois the previous month. These have been viewed as isolated incidents and have disappeared quickly from the news. In contrast, reports of antisemitic speech and conduct, especially on campus, have had more staying power. In part this is because there are indeed antisemites among us, including on campuses, and the war in Gaza has drawn some of them out. But in part this is because reports of antisemitism have been amplified by right-wing politicians, like Rep. Elise Stefanik and Trump’s VP pick Sen. J.D. Vance, who consider allegations of antisemitism a cudgel useful for undermining the authority and cultural power of liberal universities.
NYU moved to dismiss the lawsuit, arguing that far from tolerating campus antisemitism, it had moved “decisively” to address complaints, instituting a 10-point plan to counter antisemitism, Islamophobia, and other forms of bigotry, strengthening campus security, and disciplining those who violate NYU’s anti-discrimination rules. In its motion to dismiss, the university stated that it “recognizes that the past few months have been profoundly challenging for many members of its community, including its Jewish and Israeli students.” But on the question of NYU’s liability, the university was categorical: “[P]laintiffs’ allegations do not state a claim…. There is no need for this court’s intervention now, and likely never will be.”
That last part turned out to be true, although perhaps not for the reasons NYU touted in its motion to dismiss. On July 9, NYU and the Ingber plaintiffs jointly announced they had reached a settlement in the case. Though the settlement agreement itself will remain confidential, NYU admitted that it had agreed to “monetary terms.” The university’s administration also announced that it would be doing one of the things university administrators enjoy most: appointing more administrators. Specifically, NYU announced that it would name a new “Title VI Coordinator” to “ensur[e] that NYU responds adequately and consistently to allegations of discrimination and harassment based on all protected traits,” including Jewish or Israeli identity.
All of which sounds fairly benign. However, there is a disquieting detail buried in NYU’s public statement about the settlement. Specifically, the university says that the new Title VI Coordinator “will review and implement all applicable regulations and guidance from the Department of Education’s Office for Civil Rights (OCR), including OCR’s 2021 and 2024 guidance regarding the use of the International Holocaust Remembrance Alliance definition of antisemitism and the accompanying examples.”
If you find that language impenetrable, that’s because it was meant to be. A bit of history might help clarify. To end a Trump Administration review of its antidiscrimination practices, NYU agreed in October 2020 to adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, which states that
Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.
Nothing in the IHRA definition itself seems controversial — indeed, the wording is so general that it is practically useless in identifying particular speech, outside of the most hackneyed and blatant Jew-hatred, as antisemitic. To achieve wider usefulness, the IHRA definition relies heavily on a set of accompanying examples. However, NYU insisted in its 2020 statement that it “will not use the examples”, some of which have been sharply criticized for equating criticism of the State of Israel with hatred of Jews. At least in 2020, NYU understood that adopting the IHRA examples would place the university on one side in the Israel/Palestine conflict — a situation incompatible with academic freedom.
Perhaps the most controversial of the IHRA examples is one that condemns as antisemitic any statement “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.” Criticism of Israel can in fact be mixed up with antisemitic mythology — for example, the idea that the State of Israel is part of an international conspiracy, or that some Israeli policy is motivated by hatred of Christians. Yet the IHRA example can also be used to attack criticism of Israel that doesn’t traffic in these tropes. For example, the example opens the door to branding as antisemitic the often-voiced argument that Israel’s construction in the occupied West Bank of segregated roads usable by Jewish settlers, but not Palestinian residents, is a form of apartheid. It could also be used to forbid discussion of historical work by Israeli scholars showing that Israel’s founding in 1948 involved forcible removal of thousands of Palestinians from their land — which some have termed “ethnic cleansing.” The example could even be used to attack arguments for a so-called “one state solution” that would transform Israel from a Jewish state into a multiethnic state with equal rights for all of its citizens.
Any university that adopted these definitions would be putting a lot of faculty and student speech under threat. That’s why hundreds of prominent scholars, many of them Jewish, working in the fields of Holocaust history, Jewish studies, and Middle East studies, signed the Jerusalem Declaration sharply critiquing the IHRA’s definition and examples, and particularly the IHRA’s conflation of criticism of Israel with antisemitism. The United Nations Special Rapporteur on contemporary forms of racism has made the same point, noting that the definition and examples “are wielded to prevent or suppress legitimate criticisms of the State of Israel, a State that must, like any other in the [UN] system, be accountable for human rights violations that it perpetrates.” The Special Repporteur concludes that the IHRA definition has had an “adverse impact on the human rights of minorities and vulnerable groups, including Jews.”
NYU’s acknowledgment of the examples in its settlement of the Ingber litigation raises questions what the university’s students and faculty can and cannot say now about the Israel/Palestine conflict. The New York Times has reported that NYU will “consider” the IHRA definition and accompanying examples when determining if particular statements or actions are antisemitic. That understanding of what NYU has agreed to is in fact consistent with the Department of Education guidance documents NYU refers to in their statement on the settlement. But it is certainly a step further then the university has been willing to go previously. Some question whether there really is a difference between “considering” the IHRA examples and “adopting” them. The UN Special Rapporteur suggests the distinction is illusory:
Although the [IHRA] working definition is promoted as being “non-legally binding”, its de facto influence on the policy and practice of governments and private actors has contributed to violations of the human rights of freedom of expression, assembly and political participation, among others. … [I]t is precisely the “soft law” status of the working definition that effectively helps to undermine certain co-existent rights, without offering any remedy or means to legally challenge such violations.
On July 12, the NYU chapter of the American Association of University Professors wrote a letter to NYU President Linda Mills asking for clarification. “Many faculty colleagues,” the AAUP wrote, “have already written to us out of concern that the measures that NYU appears to have agreed to will further infringe on their academic freedom to teach and speak publicly on matters relating to Middle Eastern politics and history.” So far, the university has remained silent.
As we wait to learn whether there will be new limits on pro-Palestinian speech and activism at NYU, Marc Kasowitz is already targeting other universities, including Columbia and Penn. The Republican Party is set to do likewise, with the elevation of J.D. Vance, who has charged that universities are dedicated to “deceit and lies, not to the truth,” and proposes to raise the 1.4% tax on the richest universities’ enormous endowments (which actually doesn’t seem like a terrible idea).
That said, it’s important to recognize that rooting out campus antisemitism isn’t only a game for right-wing politicians and lawyers. In between dispatching armed National Guard soldiers to the subways and canceling NYC congestion pricing, Gov. Kathy Hochul found time to install antisemitism monitors at the City University of New York — a university known for student and faculty activism. Lawyers from Latham & Watkins, the law firm Hochul deputized to conduct the CUNY investigation, have been attending faculty meetings unannounced and scrutinizing event announcements to determine if questionable topics were discussed or speakers invited. The investigators have been operating without providing any clear guidelines for what counts as “antisemitism” and what does not.
The intent, some charge, is not so much to root out campus antisemitism as to instill fear. Babe Howell, a professor at CUNY’s law school, put it this way to Gothamist: “This investigation does really put me in mind of McCarthyism. The accusation of antisemitism does the work an accusation of communism did in the McCarthy era.”
Howell is right. But it’s also true that the universities have had a hand in creating the conditions she’s identified. For years, university administrators have promoted theories of inclusion and “safety” that hold that protection of an individual’s identity — a person’s race, religion, or sexual orientation — is a primary value at the university. What we’re seeing now is that some Jewish students consider their ties to Israel, their Zionism, to be core to their identity, and they are demanding the same protection against speech hostile to that identity — even if that speech isn’t antisemitic. It’s a mess, one which Marc Kasowitz and Kathy Hochul have made worse but didn’t cause.
NOTE: photo credit — Ted Eytan. Licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license.
