An excerpt from Judge John Cronan's long decision today in Gartenberg v. Cooper Union (S.D.N.Y.) (I expect to blog more later about other facets of the case [UPDATE: see this post]); note that the court's logic applies to Title VII liability in workplaces as well, especially since it cites precedents and articles that focus on Title VII:
Title VI makes it unlawful for institutions that receive federal funding to discriminate against participants in their programs on account of race, color, or national origin. In the educational context, actionable discrimination includes an institution's "deliberate indifference" to known instances of student-on-student harassment that are "'severe, pervasive, and objectively offensive' and discriminatory in effect." …
Title VI Must Be Applied Consistent with First Amendment Principles, Even When the Defendant is a Private Institution.
At the outset, Cooper Union maintains that Gartenberg's hostile environment claims are based largely on protected political speech by pro-Palestinian members of its community, and are therefore foreclosed by the First Amendment. Indeed, Gartenberg's Complaint—which alleges liability predicated, in part, on a demonstration on a public sidewalk concerning the Israeli-Palestinian conflict, the distribution of fliers supporting the Palestinian cause, a controversial "art display" advocating violent resistance to "colonialism," and a speech given by Dr. Bartov about the Holocaust—is "rife … with [F]irst [A]mendment overtones." DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995).
Gartenberg responds that the First Amendment has no relevance to her hostile environment claims. Gartenberg contends that Cooper Union is a private institution and that "[i]n contrast to students at public or state institutions, students at private colleges do not enjoy First Amendment protections." Going on, Gartenberg argues that regardless of whether Cooper Union is itself bound by the First Amendment, it would "still have the authority under the U.S. Constitution, and a responsibility under Title VI, to punish students who harass their Jewish peers on campus and thereby interfere with the victims' ability to participate in school activities."
Gartenberg's argument is unpersuasive.
