Judge John Cronan's opinion today in Gartenberg v. Cooper Union (S.D.N.Y.) considers Jewish students' claim that Cooper Union, a N.Y. private college, was deliberately indifferent to protesters' creating a hostile environment for Jewish students following the Oct. 7 attack. As I noted earlier, Judge Cronan concluded (generally correctly, I think), that the First Amendment bars Title VI liability based on "speech on matters of public concern." But the court allowed plaintiffs' case to go forward based on their allegations of other, constitutionally unprotected, conduct; an excerpt from the long opinion:
While Cooper Union is correct that the First Amendment imposes significant limits on the ways in which the Court can rely on many of the alleged acts of harassment detailed in Gartenberg's Complaint, Gartenberg nevertheless alleges sufficient facts to establish an actionably hostile educational environment based on instances of harassment that are not constitutionally protected in this context….
Although the October 25 demonstration began as a peaceful, public protest concerning the Israeli-Palestinian conflict, Gartenberg alleges that after a couple hours a mob of protestors forced their way past campus security guards and into the Foundation Building. Once inside, the protestors obstructed the hallway and disrupted classes while apparently attempting to locate President Sparks. Unable to find her, the protesters then "descended on the hallway surrounding the library" while continuing to chant their slogans.
It is plausible that this incident was physically threatening or humiliating to the Jewish students huddled inside the library. The demonstrators "attempted to enter the library, banging on and rattling the locked library doors and shouting 'let us in!'" They then spread out along the floor-to-ceiling windows separating the library from the hallway and banged loudly on the glass while waiving a Palestinian flag, holding up signs critical of Israel, and continuing their chants, this time plausibly directed at the visibly Jewish students inside the library.
This ordeal, which lasted approximately twenty minutes, was sufficiently threatening that a Cooper Union administrator locked the library doors as the mob approached, and the Jewish students left inside, some of whom were crying, contacted their loved ones and attempted to call the NYPD for help. Indeed, two school employees suggested that those Jewish students, and those students alone, should "hid[e] in the windowless upstairs portion of the library out of the demonstrators' sight" or attempt to "escap[e] the library through the back exit." And as noted, President Sparks herself was sufficiently frightened that she locked her office door to keep the demonstrators out before escaping the building through a back exit, and then "had a security guard stationed in front of her office for the remainder of the fall semester." Finally, when the Jewish students were at last able to leave, some of them were escorted out by campus security. These facts provide compelling support for Gartenberg's allegation that this incident was threatening or humiliating.
