[Eugene Volokh] Court Dismisses Discrimination Claims Against Northwestern Over Alleged Post-Oct. 7 Anti-Semitism
[1.] From Judge John Robert Blakey's decision yesterday in Doe v. Northwestern Univ., the allegations in the Complaint (note that at this stage they are of course just allegations):
In the days following [the October 7] attack, several members of Northwestern's faculty in Evanston posted about the attack on social media, with one stating "resistance is justified when a people are occupied." Another professor, Steven Thrasher, said a New York Times story on sexual assault allegations relating to the October 7 attack was "widely discredited," and noted that a story by the Guardian was disturbingly "similar."
School programs like the Northwestern Women's Center and the Asian American Studies Program also made statements on social media. The Women's Center shared a brochure from the Palestinian Feminist Collective with short articles on protests and advocacy, protest chants, hashtags like #AlAqsaFlood, and website links to suggested readings about the Israeli-Palestinian conflict. The Asian American Studies Program made a statement on Islamophobia and disputed reports that Hamas had "beheaded babies." Student groups like Students for Justice in Palestine ("SJP") issued statements accusing "Zionists" of "whitewashing" and legitimizing the "genocide" of Palestinians, which several Northwestern faculty members signed onto.
Northwestern maintains a satellite campus in Qatar ("Northwestern Qatar"), through which students and faculty in Evanston and Qatar may visit the other campus in exchange programs. At Northwestern Qatar, faculty also posted on social media about the Hamas terror attack. Professor in Residence Khaled AL-Hroub called for a Third Intifada to "sweep away the occupier," while an assistant professor in residence tweeted the "chain must be broken," in reference to the Hamas incursion into Israel. AL-Hroub also participated in a radio interview where he said he had not seen "any credible media reporting" that Hamas killed women and children on October 7th, prompting Northwestern to issue a statement condemning the "attempt to minimize or misrepresent the horrific killing of Israeli civilians by Hamas."
On April 25, 2024, student demonstrators at Northwestern's Evanston campus organized an encampment of tents, protest signs, and flags on Dearing Meadow, the campus' central lawn. Within the encampment, several individuals dressed up as members of Hamas, demanding to know whether others spoke Hebrew. Some of the signs featured blatant antisemitic imagery, like a slashed-out Star of David or a drawing of Northwestern's President Schilll—a Jewish man—with horns and blood dripping from his mouth.
In and around the encampment, several demonstrators physically assaulted or shouted slurs at Jewish students. During the encampment, participants also shouted slogans like "Intifada, Intifada, Long live the Intifada," "Globalize the Intifada," "Resistance is justified when people are occupied," and "From the river to the sea, Palestine will be free." When Jewish students attempted to document the encampment, they were physically assaulted, blocked from entering, or had phones and cameras knocked out of their possession. In a video statement to the Northwestern community, President Schill condemned such incidents of antisemitism, stating that the signs with a slashed-out Star of David or the drawing of him with horns left "no ambiguity" about their antisemitic nature.
On the first day of the encampment, Northwestern issued statements declaring the encampment was prohibited and that students who refused to remove their tents would be subject to arrest. Northwestern Police cited several students who refused to remove their tents.
Despite these efforts, the encampment persisted, and demonstrators declined Northwestern's offer to "peacefully assemble" in compliance with Northwestern policies. Seeing this, Northwestern decided to "move forward with other options to protect the safety of the community." While the encampment continued, Northwestern turned off the regularly scheduled lawn sprinklers on Dearing Meadow. Northwestern also allowed demonstrators, some not affiliated with the school, to access the Multicultural Center, normally accessible only to students.
On April 29, 2025, four days after the encampment began, Northwestern reached an "agreement" with the encampment organizers. Under the agreement, demonstrators removed their tents from Deering Meadow, while Northwestern promised to cover the undergraduate tuition of five Palestinians, and to renovate a house for Middle Eastern, North African, and Muslim students.
Northwestern also condemned the doxing of "any community member" and advised employers not to rescind job offers for students engaging in speech "protected by the First Amendment." {"Doxing" involves releasing someone's personal details onto the Internet in an easily accessible form and it may be used to humiliate, intimidate, threaten, or punish the identified individual.} Following the agreement, Northwestern SJP held an overnight sleepover on the lawn.
Two days later, on May 1, 2024, student demonstrators held a "Strike for Gaza" on Northwestern's Evanston campus. Some professors cancelled classes so students could participate, while others lectured at the demonstration. Some of the posters at the demonstration stated, "resistance is justified when people are occupied #AlAqsaFlood," and participants repeated similar messages. During these on-campus demonstrations, Northwestern's school library asked demonstrators to "please consider saving your protest materials," inviting student demonstrators to submit materials for preservation in the University Archives.
Northwestern also maintains a Campus Violence Prevention Plan aimed at disciplining any "community member" who engages in "unacceptable behavior" like "intimidating, threatening, or violent behaviors that affect the ability to learn, work, or live in the University environment." Under the plan, community members who display material that degrades a person or group, or causes harm or fear for one's safety remains "subject to disciplinary action."
[2.] The court rejected plaintiffs' Title VI hostile environment harassment claim (though, as with the other claims, they can try to replead it with more specific factual allegations, if they think those allegations are well-founded):
A school "can only be liable for harassment about which it has actual knowledge." School officials have actual knowledge "only of the incidents that they witness, or those that have been reported to them." Courts, therefore, have "focused on reports or observations in the record of inappropriate behavior to determine when school officials had actual notice." As a predicate matter, Plaintiffs must allege that a school official was aware of the "severe, pervasive, and objectively offensive" harassment. Yet in many instances here, Plaintiffs have not done so in the current complaint.
Plaintiffs allege liability and predicate their claims of loss of access to educational benefits on a variety of incidents, all relating to demonstrations in the wake of Hamas' October 7 terrorist attack. They allege a Title VI violation based upon "many other incidents on campus" which contributed to the hostility they endured. But Plaintiffs do not plead any facts about what these "other incidents" involve; nor do they allege how these "other incidents" were reported to Northwestern officials, or that those officials otherwise had actual knowledge of such incidents.
For example, John Doe 2 alleges that he was the subject of a "derogatory and harassing online post." Yet Plaintiffs do not allege anyone reported this post to Northwestern officials, or that Northwestern officials had actual knowledge of the post.
Likewise, John Doe 3 attributes his loss of access to educational benefits to a variety of events, including "antisemitic rhetoric" being "shouted at him," online harassment, false accusations, his observation of posters at a May 1, 2024 demonstration, and an interaction with a protestor at that demonstration where the protestor said to him, "resistance is justified when people are occupied." Again, however, Plaintiffs do not allege that Northwestern had actual knowledge of the antisemitic rhetoric, online harassment, or false accusations John Doe 3 faced, or knowledge of the substance of his alleged harassment.
Plaintiffs similarly do not allege that Northwestern officials had actual knowledge of the interaction between John Doe 3 and the protester at the May 1, 2024 demonstration. With no allegations that Northwestern had the requisite actual knowledge of these specific instances of harassment, Plaintiffs fail to properly allege a Title VI claim in connection with these incidents.
Across all the alleged instances of severe, pervasive, and objectively offensive conduct (that certainly deprived Plaintiffs of access to educational opportunities as alleged), there is just one—the encampment—where Plaintiffs allege facts to show school officials had actual knowledge. There, Plaintiffs' claims of deliberate indifference [an element of the hostile educational environment claim -EV] also lack sufficient factual detail, but for a different reason.
At the Deering Meadow encampment, numerous participants engaged in antisemitic harassment: dressing up as members of Hamas, displaying antisemitic signs, and assaulting or verbally harassing Jewish students. For Title VI liability to attach, however, Northwestern must have not only known about the conduct but been deliberately indifferent to it. Plaintiffs allege that Northwestern did nothing in the face of such offensive conduct and "allowed" the encampment to "clamor for five days uninterrupted." Plaintiffs add that Northwestern even encouraged, "accommodated," and "acquiesced to" the protesters: turning off its lawn sprinklers and awarding the protesters with "a bundle of goodies" in its negotiations to end the encampment. All of this, Plaintiffs argue, shows Northwestern was deliberately indifferent.
Deliberate indifference is a "stringent standard of fault." The deliberate indifference standard "requires that the school's response not be clearly unreasonable, which is a higher standard than reasonableness." A school's response is sufficient "so long as it is not so unreasonable, under all the circumstances, as to constitute an 'official decision' to permit discrimination." CA school's response does not need to be perfect or successful to clear this standard, and even a negligent response is not necessarily unreasonable under Title VI. Depending upon the circumstances, a school's ultimate decision to impose no remedial measures could suffice and might not be "clearly unreasonable" or constitute deliberate indifference….
As currently alleged, … the allegations do not explain how Northwestern's conduct was clearly unreasonable or deliberately indifferent. Indeed, in the paragraphs immediately following Plaintiffs' allegations that Northwestern "allowed" the encampment to clamor "uninterrupted," Plaintiffs describe efforts by Northwestern officials to bring the encampment to an end…. Northwestern officials also publicly denounced the encampment and told demonstrators that the encampment was prohibited. Thereafter, some protestors refused demands to remove their tents, and they received citations from Northwestern Police; and then, after this initial approach failed to end the encampment, Northwestern explored "other options to protect the safety of the community and the continued operations of the Evanston campus."
Working over the weekend, Northwestern officials negotiated the end of the encampment in four days, "a relatively short period compared to similar encampment activity on other college campuses." … Northwestern officials did not leave the encampment totally "undisturbed" or otherwise order law enforcement to stand down in the face of unlawful conduct. Instead, Northwestern unsuccessfully tried to discourage protesters with warnings and police citations, before negotiating for the encampment's conclusion, with a "purpose in returning civil order."
Plaintiffs take issue with Northwestern's decision to explore "other options," and accuse Northwestern of accommodating or acquiescing to the encampment. But Title VI does not mandate a specific set of increasingly punitive measures to remove hostile environments, and courts "must hesitate to second guess" officials' judgments to find the appropriate response. [Northwestern] officials came to the "defensible conclusion that intervention could have triggered an even larger and more disruptive backlash," … deciding that a negotiation would bring a quicker and more peaceful resolution.
In short, the legal question is not whether Northwestern "could have handled each situation better," but rather was Northwestern "so indifferent to known acts of harassment that it caused students to undergo harassment or made them more vulnerable to it, and thereby undermined the students' education." The current complaint lacks the requisite allegation to show Northwestern's indifference.
{In the current complaint, the Plaintiffs also lack detail regarding the concrete deprivations of access to Northwestern's educational benefits. To state a valid Title VI claim, Plaintiffs must "plead with specificity that the conduct at issue had some 'concrete, negative effect' on their education." Courts have found concrete deprivations existed where plaintiffs alleged they "were forced to change their study habits or change schools, where they had a measurable drop in grades or increase in absenteeism, or where they developed anxiety sufficient to require intervention." For example, in Gartenberg [a previous case involving Cooper Union in New York], plaintiffs alleged they suffered from "intense anxiety and panic attacks," "engaged therapists, missed and/or dropped assignments," and one student delayed completion of their degree. There, the court concluded plaintiffs plausibly alleged a loss of educational benefits and opportunities. Similarly, in Canaan v. Carnegie Mellon University, the plaintiff alleged that she missed numerous lectures and many hours of an 18-credit course, was denied meetings with a mentor, and avoided community events associated with her school program. This, too, was sufficient to show a loss of educational benefits and opportunities. So too in Frankel v. Regents of University of California, where plaintiffs were blocked from entering classrooms and ultimately missed their final exams….
Here, among other things, Plaintiffs allege that they "heard hateful expressions when walking near the encampment," that they were subjected to verbal or online harassment, that they viewed a friend being struck by a protester, and that they generally observed unspecified "other incidents" but, again, lack details of the denials of access to Northwestern's resources or opportunities.}
[3.] The court also concluded that plaintiffs hadn't plausibly alleged facts necessary to prevail under a straight-up intentional discrimination theory:
Plaintiffs claim they have alleged discriminatory intent, through "discriminatory conduct of official Northwestern departments, and the school's lucrative partnership with Qatar and Al-Jazeera." Plaintiffs add that Northwestern's "lucrative partnership with Qatar and Al-Jazeera" provides further "motive" for Northwestern to overlook antisemitism, and to "placate its major overseas donor and institutional partners." Plaintiffs further claim, "faculty and staff at Northwestern Qatar call for violence against Jews and support Hamas, consistent with the Qatari government."
Plaintiffs argue, then, that the "back-and-forth flow of Northwestern Qatar's faculty and students with Northwestern's Illinois campuses," combined with Northwestern's refusal to discipline "discriminatory conduct of its Northwestern Qatar faculty," "results in an unsafe campus for Jews at Northwestern." The unsafe campus ultimately leads to Plaintiffs' alleged deprivation of access to educational benefits: "a harassing campus climate that is a direct result of Northwestern's lopsided and discriminatory policy enforcement."
Plaintiffs' theory, however, does not explain how Northwestern's decision to establish a campus in Qatar demonstrates discriminatory intent on the part of Northwestern, and their arguments remain predicated upon conclusory allegations. Plaintiffs also plead no facts explaining how Northwestern is acting to "placate" Qatar, and they allege no non-conclusory facts plausibly showing a connection between Northwestern's foreign partnerships and its actions toward antisemitism on its Evanston campus. At this stage, Plaintiffs must allege "adequate factual detail to lift" their claims "from mere speculative possibility to plausibility." Plaintiffs have not.
The alleged connection between Qatari faculty and students and Northwestern's Evanston campus is also conclusory. Plaintiffs repeatedly complain that the relationship between Northwestern-Qatar and Northwestern-Evanston contributes to an unsafe environment for Plaintiffs in Evanston, but they plead no facts as to how. Though Plaintiffs complain that students from Qatar "participated in the major antisemitic event on campus"—the encampment—Plaintiffs' only factual support for this allegation is an image of a poster stating, "NU Qatar 4 a Free Palestine." By itself, this poster fails to plausibly show discriminatory harassment under Title VI.
Plaintiffs complain that Qatari faculty sometimes speak at "lectures and presentations" on the Evanston campus through Northwestern's exchange program, but Plaintiffs plead no facts about any event in Evanston with a Qatari faculty member who engaged in discrimination. Plaintiffs also plead no facts showing that any of the Qatari faculty members named in the Complaint ever visited Northwestern's Evanston campus. In short, Plaintiffs' current allegations do not plausibly show how Qatari faculty and students created an unsafe environment for Plaintiffs in Evanston.
Finally, even where the complaint alleges individual Northwestern faculty and staff made offensive posts on social media, it fails to allege how those posts precluded Plaintiffs from participating in, or denied them the benefits of, an educational program. Plaintiffs do not explain the details of how the social media posts "so eroded" their experience at Northwestern that they were "denied equal access to its resources or opportunities." Without any allegations that Plaintiffs even encountered the posts, or that the posts affected the programs Plaintiffs were enrolled in, the posts, without more, cannot form the basis of a Title VI claim.
[4.] The court likewise concluded that plaintiffs hadn't sufficiently alleged that Northwestern "enforce[ed] its policies in one manner when it comes to Jewish students, while enforcing them in another when it comes to all other protected classes":
Specifically, Plaintiffs alleged two comparator cases as evidence of this lopsided enforcement. First, when Northwestern responded to white supremacist stickers on campus by filing police reports, working with local authorities, and issuing a condemnation of the behavior. Second, when Northwestern announced its opposition to racism and police brutality in the wake of George Floyd's murder. Without more, however, these two comparators are insufficient to demonstrate discrimination under the indirect method, because Plaintiffs have not put forth "a single example of a similarly situated individual" outside their protected class that "received the response" Plaintiffs sought from Northwestern upon complaining of harassment.
Here, Plaintiffs' reliance on the encampment also lacks the temporal connection to show that Northwestern's disciplinary decisions led to the "harassing campus climate." Plaintiffs' suggestion that Northwestern's past disciplinary decisions somehow led to the encampment is too conclusory to impose Title VI liability as alleged. Plaintiffs plead no facts establishing a plausible inference that past disciplinary decisions were a cause of the Deering Meadow encampment.
[5.] Plaintiffs also sued for breach of contract, but the court didn't consider that issue:
Having determined that Plaintiffs' federal claim must be dismissed, the Court need not yet decide whether to exercise supplemental jurisdiction over Plaintiffs' state-law breach of contract claim…. "The usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial." …
Casey T. Grabenstein, Elizabeth Anne Thompson, James A. Morsch, Joshua W. B. Richards, and Megan Quinn Warshawsky (Saul Ewing Arnstein & Lehr LLP) represent Northwestern.
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