Harvard, in New Filing in Court, Suggests Its Jewish Students Were Too Fearful in the Wake of October 7

Who’s to blame — the lawyers or the client?

AP/Ben Curtis
Students protesting against the war in Gaza, and passersby walking through Harvard Yard, are seen at an encampment at Harvard University at Cambridge, on April 25, 2024. AP/Ben Curtis

Harvard reportedly spent more than $25 million, mostly on the law firm WilmerHale, defending the racial preferences in college admissions that the Supreme Court struck down as unconstitutional. After losing the landmark Students for Fair Admissions v. Harvard case in June 2023, Harvard again turned to WilmerHale to prepare its president, Claudine Gay, for a December 2023 congressional hearing on Harvard’s response to antisemitism. 

President Gay’s performance at the hearing was widely denounced.  Both she and the president of the University of Pennsylvania, Elizabeth Magill, who also relied on WilmerHale for pre-hearing preparation, resigned after apologizing for giving overly legalistic answers suggesting that whether calls for genocide against Jews violate their university policies would depend on the “context.” 

Now Harvard is facing a third embarrassment. This past week, one of the same lawyers who tried the Asian-American admissions case, Felicia Ellsworth, who sat in the first row behind Ms. Gay in the December congressional hearing, joined three other WilmerHale lawyers and four from another firm in filing a motion to dismiss and strike a complaint filed in court by Jewish students alleging antisemitism at Harvard.

The students, Alexander  Kestenbaum and Students Against Antisemitism, Inc., said 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,” their complaint says. In a memo supporting the motion to dismiss and strike, the lawyers for Harvard said that the Jewish students do not “describe an environment in which an objectively reasonable person would fear physical violence.”

By basically calling Harvard’s own Jewish students unreasonable for fearing violence less than two weeks after the October 7, 2023, Hamas-led terrorist attack on Israel, the lawyers risk proving the complaint’s point about Harvard antisemitism, rather than persuading Judge Richard Stearns to dismiss it. 

The lawyers, in blaming the Jews, aren’t all that different from the dozens of Harvard student groups who, on October 7, issued a statement saying that they “hold the Israeli regime entirely responsible” for the violence and that “the apartheid regime is the only one to blame.” After a furor, Harvard eventually distanced itself from that statement, but to this day the university has not directly or officially repudiated it.

The same memo from Harvard’s eight lawyers also gives Judge Stearns an impression about how Harvard has handled an outbreak of antisemitism on Sidechat, a social media app that offers an anonymous platform for use by Harvard affiliates. That platform featured posts such as “let em cook,” cheering on the Hamas terrorist attack that burned Israelis alive, featured rape and kidnapping, and killed more than 1,200.

The lawyers’ memo said that “Harvard quickly met with Sidechat leadership and secured assurance from Sidechat to engage in 24/7 content moderation.” Yet the meeting with Sidechat happened not “quickly” but only in January, following intense public and legal pressure on Harvard and months after Harvard administrators and faculty were originally informed of the antisemitic posts. 

The Harvard lawyers’ memo omits that the antisemitic posts on Sidechat persisted even long after the meeting and the pledge about moderation. In April 2024, a member of Harvard’s faculty task force on antisemitism, Professor Boaz Barak, posted that he was, “Disappointed in Harvard students cheering on Iran and posting blatantly anti semitic statements on social media yesterday.”

Who is supervising Harvard’s outside lawyers? The position of general counsel at Harvard was once filled by persons of stature. Dan Steiner had the job between 1970 and 1992. His son Joshua is now on the board of Yale. After Mr. Steiner came Margaret Marshall, a partner at Choate, Hall & Stewart who was married to New York Times columnist Anthony Lewis. She later became chief justice of the Supreme Judicial Court of Massachusetts and wrote that court’s decision that made Massachusetts the first state to legalize gay marriage. 

The most recent top internal lawyer at Harvard, Diane Lopez, announced on November 30, 2023, that she would retire at the end of February 2024. Six and a half months since then, Harvard still hasn’t announced a permanent replacement, leaving the university in the hands of an interim vice president and general counsel alongside its interim president and interim provost. 

At least the “interim” title makes explicit what is increasingly an accurate description of Harvard’s leaders: they are short-timers. Between 1909 and 1991, the era of Lowell, Conant, Pusey, and Bok that historian Richard Norton Smith has deemed the Harvard Century, the average term of a Harvard president was more than 20 years. More recently, in the 21st century, Lawrence Bacow lasted for 5 years and Claudine Gay a mere six months.

An article headlined “the most common type of incompetent leader” describes “a leader in title only — his role was leadership, but he provided none.” It appeared in, of all places, the Harvard Business Review. It’s easy enough to blame the lawyers. Yet at a certain point “an objectively reasonable person,” to use the court filing’s term, could be forgiven for wondering about not just the lawyers, but the client.

The New York Sun

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