By Zach Kessel | National Review | June 28, 2024
Photo courtesy of Shutterstock
Since the attack of October 7, Columbia University has been hit with a flurry of lawsuits accusing the school of failing to address the resulting surge in antisemitism, but a new complaint filed last week employs a little-used, 19th-century law to hold the university to account: The Ku Klux Klan Act of 1871.
When Columbia administrators failed to prevent organizations such as Students for Justice in Palestine (SJP) from occupying areas of campus and violating the rights of Jewish students, they violated the Ku Klux Klan act, according to attorney Marc Kasowitz.
“The KKK Act was originally enacted after the Civil War to combat racism and organized violence against blacks. What it does is prevent groups from banding together with the intent of violating any individual’s constitutional rights,” Kasowitz told National Review.
While Columbia administrators did not participate in the harassment of Jewish students themselves, Section 6 of the act “imposes an affirmative obligation on third parties who might have knowledge that a violation of the Act is about to be committed, and that third party might have power or authority to stop it from being committed,” Kasowitz explained.
The complaint — brought by the law firm Kasowitz Benson Torres, alongside the Students Against Antisemitism (SAA) and StandWithUs Center for Legal Justice (SCLJ) — was filed as an update to an initial February suit that hinges on Title VI of the 1964 Civil Rights Act, the provision holding that entities that receive federal funding cannot allow discrimination on the basis of race, color, or national origin.
A Columbia spokeswoman declined to comment on the pending litigation.
The amended complaint points to a variety of instances of antisemitic harassment and administrative misconduct.
Columbia administrators, plaintiffs note, entered the anti-Israel encampment to tell students they were “here to work with you” and attempted to help organizers avoid discipline. Multiple professors, as well, openly supported the encampment, canceling classes and allowing students to leave to join protesters without academic consequences.
The plaintiffs point to multiple instances of Jewish students being prevented from entering the main area of Columbia’s campus on the charge of being “Zionists,” a situation that denied observant Jewish students’ ability to walk to the only kosher dining hall on campus safely.
Also in the complaint are accounts of Jewish students being physically assaulted and having religious garments torn from their bodies without any consequences for perpetrators. In those cases, Jewish students often reported incidents to administrators — to no avail.
“We sued Columbia on the theory that the university is a third party to the misconduct by these student groups like Students for Justice in Palestine,” Kasowitz told NR. “It knows that they are involved in and engaged in holding these rallies and demonstrations, which we claim violate the individual rights of Jewish students on campus, but they don’t do anything to prevent it — to prevent this conspiracy that these groups are engaged in — and they don’t fix it.”
The administration crossed a legal line by allowing anti-Israel protesters to establish an encampment on campus and bar certain students from entering it, explained Jillian Roffer, an associate at Kasowitz’s firm.
“The most recent unique feature of the situation at Columbia is really the encampment. The administration allowed the students to occupy that space for two weeks before they took action, and they negotiated with the students leading the occupation for days,” Roffer said. “There were professors teaching class in the encampment and students taking food from the dining hall [and bringing it to the encampment]. That speaks to the magnitude of the problem and is really the heart of the claim.”
Kasowitz and his firm have brought complaints against Harvard University, New York University, and the University of Pennsylvania alongside the Columbia filing. While he emphasized that each of the four institutions has severe issues in how it has handled antisemitism on its campus, he said that “Columbia is ground zero,” specifically referencing a recent episode in which university administrators sent disparaging and mocking text messages during a presentation on antisemitism.
Yael Lerman, the director of the StandWithUs legal department and a Columbia University alumna, told NR there are a few potential reasons why her alma mater has emerged as one of the epicenters of the recent wave of campus antisemitism.
“Some people say it’s because of Edward Said coming to Columbia and training professors who have upheld his legacy,” Lerman said of the academic who played a key role in the development of post-colonial studies. Additionally, Columbia’s current president, Minouche Shafik, is not seen as an authority figure in the same way her predecessor was, Lerman explained. And the university lacks a dedicated police force.
“It seems there’s more lawlessness there,” Lerman said.
Then, there’s Columbia’s New York City location and legacy as a civil-rights-era protest center.
“That creates two things: One is that it creates a greater number of community members and the potential for outside agitators to come in more easily,” she told NR. “On the other hand, it self-selects for students who want to be activists in New York City.”
But Columbia’s progressive ethos and the resulting concern for minority groups has not extended to Jews on campus: The university antisemitism task force in its first report found that harassment of Jews is treated differently on the campus from harassment of other groups.
“In recent years, it has become increasingly common at Columbia to defer to a protected class’s views,” the task force wrote at the time. “But when some Israeli and Jewish Columbia affiliates have complained about phrases or comments in recent months, the response has been different, defending the intentions and free speech rights of the speakers. While there are important reasons to value the perspective of both the speaker and the audience, the University must be consistent in its approach.”
One reason why the antisemitic climate at Columbia has received so much attention — not just during the past academic year but over the past decades — is because of the dichotomy on campus between prominent anti-Israel faculty and a strong Zionist Jewish community within the student body, said David Schizer, a law professor and a co-chairman of Columbia’s task force on antisemitism.
Many Columbia professors share the dismissive attitude toward campus antisemitism expressed by the administrators who were caught making light of the situation in leaked text messages — that is until the faculty members hear firsthand from Jewish students.
“I have colleagues who were originally skeptical, and then I brought them to meetings with Jewish and Israeli students. They sat and listened, and after, they would say to me, ‘I’m furious. I can’t believe this is happening. I had no idea,’” Schizer told NR. “A lot of it is invisible, because students may not necessarily want to talk about it and may not be comfortable going to the people who should hear about it.”
What, then, is to be done?
For Schizer, the solutions begin with discipline.
“We have disciplinary cases still in progress from the spring, and it’s really important that the university move ahead with those,” he said, “for people who deserve serious consequences — including suspension or even expulsion — to receive those penalties.”
“Reestablishing that internal disciplinary process is the most important thing that we can do to make the fall semester successful,” he explained, pointing out that many student activists believe they can act with impunity.
As for the professors who gave their students free rein to leave class to join protests or in some cases held seminars in the encampment, Schizer emphasized that such actions pose civil-rights problems.
“It’s irresponsible for faculty to treat their classes as an opportunity to advance their personal views,” he said. “In the same spirit, it’s very problematic to hold classes in an encampment, which, unfortunately, some faculty did. To my mind, that’s a potential violation of Title VI of the Civil Rights Act of 1964, because our classes are supposed to be open to all students, regardless of background, regardless of religion.”
While not every Jewish student identifies as a Zionist, that political litmus test will disproportionately exclude Jews, many of whom consider Israel core to their identity. It’s a distinction that could be easily grasped if you substitute ‘No Black Lives Matter supporters allowed’ for ‘no Zionists allowed,’” Schizer said.
The push to hold students who violate universities policies to account has taken on new importance after Manhattan district attorney Alvin Bragg’s decision to drop charges against dozens of Columbia students and outside agitators who stormed a campus building.
But it remains to be seen whether Columbia will crack down on violations of its policies. In the meantime, Kasowitz said, lawfare is the only option.
“The only way to stop it is through procuring results in court or through meaningful settlements that have the effect that a court order would have,” Kasowitz said. “There needs to be total transparency about what’s happening on campus. And then there needs to be real teeth in a settlement or in a court order that has as its basis a zero-tolerance policy for antisemitism, the same way that these universities have zero tolerance for racism, for gender discrimination, or for other types of discrimination that impact protected groups under Title VI.”
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