Kestenbaum v. Harvard

Since the October 7, 2023 Hamas attacks and Israel’s military response, protests have roiled campuses across the country. Harvard is no exception. After antisemitic incidents on campus, Jewish students sued Harvard for violating Title VI of the Civil Rights Act of 1964, a federal anti-discrimination law. The complaint, filed by a Harvard student and the national organization Students Against Antisemitism, alleges anti-Israel protesters restrained and assaulted Jewish students on campus, but it also claims Harvard should have restricted peaceful protests, outdoor displays, online posts, and other expression protected by the First Amendment.

As the United States District Court for the District of Massachusetts considers Harvard’s motion to dismiss the complaint, FIRE filed an amicus brief in support of neither party to help the Court understand the interplay between the First Amendment and discrimination law. Since October 7, 2023, FIRE has seen colleges and universities responding to campus unrest in ways that threaten to chill speech, including expulsions and arrests. Title VI requires colleges and universities that receive federal funding to ensure discriminatory harassment does not deprive students of an education. But the only Supreme Court case to define discriminatory harassment by peers, Davis v. Monroe County Board of Education, ruled the government may not punish students’ speech unless the speech is so severe, pervasive, and objectively offensive that it effectively deprives other students of an education. FIRE asked the Court to separate the violent incidents the plaintiffs allege from student expression that falls short of the Davis standard, and to not read Title VI to require Harvard to punish students’ protected speech.