Harvard Accuses Its Jews of Being Unreasonable New court filing from Wilmer Hale also misleads judge about Sidechat Ira Stoll
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A new court filing by the eight lawyers Harvard is paying to defend the university from student complaints of antisemitism says the Jewish students were being unreasonable when they feared violence at the hands of anti-Israel protesters on campus.
A federal lawsuit by Alexander “Shabbos” Kestenbaum and Students Against Antisemitism, Inc. had reported that on October 19, 2023, a mob stormed Harvard Law School. “Fearing a violent attack, students in the study room removed indicia of their Jewishness, such as kippot, or hid under desks,” the complaint says.
In a June 18, 2024 court filing, lawyers for Harvard insist that the Jewish students do not “describe an environment in which an objectively reasonable person would fear physical violence.”
The filing carries the name of eight Harvard lawyers—Mark Kirsch, Gina Merrill, Zachary Fardon, and Zoe Beiner of King & Spalding, and Felicia Ellsworth, Seth Waxman, Bruce Berman, and Jeremy Brinster of WilmerHale. Waxman and Ellsworth of WilmerHale billed Harvard millions of dollars for an aggressive defense against a similar federal lawsuit brought over discrimination against Asian-Americans in college admissions that wound up with a Harvard loss at the Supreme Court.
The court filing encapsulates the risk Harvard faces in defending against the lawsuit and a similar one brought by the Louis D. Brandeis Center for Human Rights Under Law. The more aggressively Harvard defends against the lawsuit, the more it risks insulting and denigrating its own Jewish students and alumni, and reinforcing the perception that the university is callous and insensitive to the concerns raised by the students and by their allies in Congress.
If the Jewish students are so unreasonable, how’d they possibly make it past Harvard’s highly selective admissions process?
The claim that the Harvard students were being unreasonable to fear violence is particularly egregious given that it was less than two weeks after the October 7 massacre in Israel, in which Jews were raped, kidnapped, and burned alive, and about 1,200 Israelis were killed. Dozens of Harvard student organizations responded on October 7 with an open letter blaming Israel alone and entirely for all the violence, and also with social media posts on private Harvard channels featuring Palestinian flags and comments such as “let em cook,” expressing approval for the Hamas terrorist attack.
The private Harvard social media channel, a platform called Sidechat, also figures prominently in Harvard’s latest court filing. “When Harvard Hillel informed the University of antisemitic posts on the messaging platform Sidechat (which Harvard does not control), Harvard quickly met with Sidechat leadership and secured assurance from Sidechat to engage in 24/7 content moderation,” says the memorandum in support of Harvard’s motion to dismiss and motion to strike the Kestenbaum complaint.
Yet, contrary to the eight lawyers’ false claim to the court that the meeting happened “quickly,” the meeting happened only in January 2024, three months after multiple university officials had been informed of the offensive “let ‘em cook” and other similar posts, and only after substantial legal, media, donor, and political pressure had been brought to bear. And, even after the “assurance” and the meeting, the problematic posts persisted, just as Jewish students predicted. In April 2024, Harvard professor Boaz Barak, a member of Harvard’s faculty task force on antisemitism, posted that he was, “Disappointed in Harvard students cheering on Iran and posting blatantly anti semitic statements on social media yesterday.”
Maybe because seven of the eight Harvard lawyers are based in New York, Washington, or Chicago rather than Boston, they aren’t close enough to the situation to understand that Harvard bureaucrats are misleading them when they claim the Sidechat issue has been satisfactorily solved. Ellsworth, at least, who lives in the Boston area and teaches at Harvard Law School, should know better. An ethical lawyer would immediately amend the filing to let the judge know that, contrary to the false and misleading impression given in the filing, “blatantly antisemitic statements” as defined by a faculty member of Harvard’s own antisemitism task force have continued on Sidechat long after the meeting and moderation that Harvard mentions.
And since Harvard is bringing up Harvard Hillel to give Judge Richard Stearns the false impression that the university is rapidly responsive to Hillel’s complaints, perhaps while Ellsworth and her seven co-counsels are at it, they might want to level with Judge Stearns that Hillel leadership has real, ongoing, significant concerns about whether Harvard is doing everything it can and should to support its Jewish community in areas such as funding security for Harvard Hillel, providing kosher dining, and admitting enough Jewish students to create a viable, let alone flourishing, Jewish community.
You’d think that Waxman and Ellsworth and WilmerHale would have learned from the previous experience that they might win a favorable ruling from a district court judge in Boston or an appellate panel in the First Circuit, but that when the full record gets before the Supreme Court, Harvard’s fast-fading prestige is not permission for discrimination. Maybe instead the lesson they learned is that they can bill millions of dollars to lose a case and still get hired again for the next one.
The right move for the Harvard Corporation, the more powerful of the university’s two governing boards, is to not get bossed around by the lawyers. Last time around, with the Asian-American admissions case, WilmerHale partner William Lee was senior fellow of the Corporation. This time around, WilmerHale doesn’t have such an obvious in, though WilmerHale lawyer Seth Waxman and Harvard Corporation member Kenneth Chenault both visited the Biden White House on February 27, 2024, records show.
How hard would it be for Penny Pritzker and Alan Garber and interim provost John Manning to call Felicia Ellwsorth and Seth Waxman in for a meeting and say: hey guys, look, we’re the client here. If you can’t figure out a way to represent Harvard University in this case without insulting our Jewish students as unreasonable and without misleading a federal judge about Sidechat and Harvard Hillel, we’re going to let you go. Maybe we’ll find a different law firm in hopes of reaching a settlement with the Jewish students. But we’re not interested in spending more than ten million dollars in legal fees to lose a discrimination case. We did that already once. Once was enough.
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