“Thank God for Dead Soldiers.” “Pope in Hell.” “Priests Rape Boys.”
Not exactly refined commentary, perhaps, but courts have determined that such sentiments are protected by the First Amendment nonetheless. So argue attorneys for Chapman University in their response to a lawsuit filed by a pair of recent graduates who charge Chapman with antisemitism.
“While many understandably found this speech offensive or disturbing, (the law) does not require a university to silence protected expression to shield those who object to its content,” Chapman answered as it requested dismissal of the suit.
This is the crux of Chapman’s arguments as it battles the claim filed by Eli Schechter and Talya Malka, who graduated in 2024. They say Chapman allowed antisemitic bullying by pro-Palestinian activists after the horrors of Oct. 7, 2023, and that the school failed to take action against a “hate group” supporting a Palestinian homeland.
Schechter and Malka assert that opposition to Zionism — the political movement to establish and defend a Jewish homeland in the Middle East (at, some would argue, any cost) — is the same thing as antisemitism, the hatred of Jews. The suit wants Chapman to officially adopt a definition of antisemitism equating the two, a proposition that has enraged some of the school’s Jewish faculty. Opposing Israel’s policies, and hating Jews, are two very different things, the trio of professors argues, and the university agrees with them.
The lawsuit seeks to “transform a year of contentious campus activism regarding the Israel–Gaza conflict into federal civil rights liability against Chapman University,” Chapman’s filing said.
“Chapman is deeply committed to protecting its students from harassment, discrimination and acts of antisemitism. But (federal law) does not make universities automatically responsible for the expressive activities of students or for every instance of abhorrent peer conflict.
“Rather, Chapman may be held liable only if it intentionally discriminated against Plaintiffs or responded to student misconduct with ‘deliberate indifference’ that was clearly unreasonable in light of known circumstances. Plaintiffs have not alleged facts that would support either conclusion — and there are no such facts.”
(Photo by Gene Blevins/Contributing Photographer)
Au contraire, Chapman argues. Schechter and Malka’s own allegations show that Chapman administrators took many actions to address their concerns, including meeting with students, investigating alleged incidents and threats, pulling in campus Public Safety officials, and managing the competing demands of safety and expression.
“Plaintiffs identify no facts plausibly suggesting that Chapman acted with discriminatory animus or responded to reported incidents in a manner that could meet the stringent deliberate indifference standard,” Chapman’s filing said.
“Moreover, the vast majority of conduct Plaintiffs identify as ‘harassment’ consisted of student political speech (e.g., protest messaging and sidewalk chalking) concerning matters of public debate and thus protected by the First Amendment — even though it was offensive to many. Federal civil rights statutes cannot be construed to force Chapman to impinge on these constitutional rights.”
Also, because both plaintiffs graduated in 2024 and are no longer subject to the campus conditions they challenge, their requests for class action status for all Jewish students, and for forward-looking relief, are moot, the university said.
Is this antisemitism?
pro-Palestinian Israel-Hamas war protest in Westlake Village as he carried an Israeli flag on Sunday. (Photo by Sarah Reingewirtz, Los Angeles Daily News/SCNG)
After Hamas’ attack on Israel in 2023, a memorial to the victims, created by Jewish students and organizations, rose on Chapman’s campus. An Israeli Defense Forces flag appeared as well.
Soon, a large Palestinian flag was hung above the memorial’s Israeli flags, “in an act of ethnic intimidation and domination,” the plaintiffs argue in the suit. Members of Students for Justice in Palestine “openly and publicly desecrated the memorial by stealing and removing flags.”
According to the suit, Schechter emailed Chapman officials asking for protection, writing: “A lot of Jews in our community are scared and have reported individuals ripping Israeli flags from the ground and giving them mean looks.”
Also, flyers posted by Jewish student groups were ripped down and replaced with flyers affiliated with Students for Justice in Palestine, which the suit described as “colonizing the space… a systemic pattern of ethnic and racial intimidation.” Also, Jewish students were barred from a meeting held by Students for Justice in Palestine, and Jewish students were subjected to shouts of “(expletive) Jews” while on campus, as well as instances of Nazi salutes, homosexual innuendo, calls for Intifada, death threats — and even the display of a dead squirrel — the suit said.
“I really don’t feel safe on campus,” Malka told authorities, according to the suit. “The Jewish community does not feel safe on campus…. I don’t want to have to keep saying ‘I am scared’ until it is too late.”
Chapman’s leadership knew about anti-Semitic harassment and discrimination, according to the suit, yet the school’s leaders failed to adequately respond to that situation by disciplining student organizations like Students for Justice in Palestine. The suit describes that organization as a hate group and said it was the “driving force” for the “discrimination and harassment” felt by the Jewish students.
Arabs and Muslims received preferential treatment, the suit continued, “so as to not fuel what Chapman’s DEI officers viewed as ‘negative stereotypes’…. ” Also, one of the plaintiffs, Malka, experienced emotional distress so great that, according to the suit, “her eyes often swelled shut to the point where it obstructed her vision to such a degree it was unsafe for her to drive and she needed to walk to school.”
While the Jewish students were expressing their race, religion and national origin as inseparably connected to Israel, Chapman, according to the suit, “sustained an atmosphere of racial harassment and discrimination” that deprived the Jewish students of the educational experience they paid for. The suit seeks class action status for Chapman’s Jewish students, as well as compensatory and punitive damages, pre-judgment and post-judgment interest, costs and attorneys’ fees.
No, university says
Chapman, in its filing, said the school has neither the obligation to — nor the option of — punishing protected speech.
And the two graduates “cannot transform political speech into unprotected speech by characterizing it as anti-Zionist, even if they and others associate Zionism with their identity as Jews,” Chapman’s filing said. “While ‘Plaintiffs are entitled to their own interpretive lens equating anti-Zionism (as they define it) and antisemitism . . . it is another matter altogether to insist that others must be bound by (that) view.’
“One must look no further than the recent news headlines to understand that the relationship between anti-Zionism and antisemitism is being actively debated at this very moment and should be resolved ‘through discourse, not judicial fiat.’”
Lawyers for Chapman ticked through its responses to the alleged antisemitic incidents:
The school disciplined a student for removing Israeli flags from the Oct. 7 memorial and yelling “F— Jews” to a group of Jewish students. It organized meetings between Schechter and a pro-Palestinian protestor in an attempt to improve dialogue. It did a risk assessment of the student who allegedly threatened Malka.
The school “consistently applied neutral time, place and manner policies to student protests and demonstrations.” The school also explained that Schechter was denied entry to the Students for Justice in Palestine “teach-in” because of his view of Zionism, not because of his Judaism. (Some Jewish students who agreed with the organization’s beliefs attended the meeting).
Also, the school responded to emails Schechter sent throughout the academic year expressing his concerns, and the school issued campus-wide communications explaining the administration’s efforts to balance safety with expressive rights.
And on a claim that Chapman did not respond appropriately after a student targeted Schechter with “unwanted homosexual innuendo” when he told Schechter he loved him and made a “kissy face” towards him, the school said this: “(T)he absence of the particular response Plaintiffs thought appropriate does not itself render Chapman’s response ‘clearly unreasonable in light of the known circumstances.’”
While some fair-minded people might question whether Chapman acted quickly and decisively enough, others might be sympathetic to its attempts not to aggravate the situation, the filing said. Schechter and Malka may disagree with the precise contours of Chapman’s response to their complaints, but that does not convert its response to “deliberate indifference” or worse, it argued. “That is fatal to Plaintiffs’ harassment theory.”
The complaint should be dismissed in its entirety, Chapman said.
Next steps
When Chapman filed its request for dismissal, just before New Year’s, it included a declaration from its lawyer saying he had conferred with the other side and that there would be no amended complaint.
But on Jan. 19, Schechter and Malka’s lawyers did file an amended complaint. The new version seeks to more firmly tie the actions on campus to the university’s administration, and to bolster the graduates’ arguments that the university broke promises, and to claim class action status for all Jewish students at Chapman.
The plaintiffs are ready to fight.
“In terms of the First Amendment question, I don’t think even Chapman believes that students’ conduct — calls for Intifada (lynching of Jews) and using associated symbology like red triangles — constitutes conduct with which they cannot interfere,” said one of their attorneys, Matthew Mainen of the National Jewish Advocacy Center.
“After all, I am sure you saw in Paragraph 40 of the amended complaint that we found an instance in which someone went on a rant using anti-black and anti-gay language and they were expelled promptly and the university president issued a lengthy statement. Does Chapman really expect us to believe that using racial slurs is grounds for expulsion but calling for and threatening racialized violence is just free speech?
“Moreover, if Chapman truly believes they must allow students to draw inverted red triangles over chalking by Jewish student organizations (paragraph 64), and in front of where Jewish organizations are tabling (paragraph 69), they should also come out and say students should feel free to draw nooses targeting black student organizations. If they do, I will be there to sue them on behalf of black students as well.”
Chapman finds itself in the crosshairs of a culture war, alongside the likes of mighty UCLA, Columbia, Harvard and the rest. Politics and religion collide; the line between free speech and harassment gets fuzzy; and expensive lawsuits either a) seek to protect Jews from antisemitism and violence or b) seek to stifle criticism of Israel.
The trio of Jewish professors urging the university to fight — Shira Klein, associate professor of history and department chair; Richard Ruppel, professor of English and Peace and Justice Studies; and Fred Smoller, associate professor of political science — are pleased with its response.
“I’m proud of Chapman’s leadership for standing up for academic freedom and free speech,” Klein said.
The university shouldn’t insulate students from what’s going on in the world, Smoller said; students can learn important things by being confronted with ideas they hate.
“Universities have to balance academic freedom, free speech, and the right of students not to be harassed,” Smoller said. “The student complaints were handled internally, with these values in mind. The case should be dismissed with prejudice.
“The notion that Chapman is an antisemitic institution is (expletive).”
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