Legal Analysis of Government's Antisemitism "Notice"
From an actual law professor
Should Columbia sue? That’s been the key question since March and it remains the question.
We don’t pretend that there’s an easy answer. Litigation is costly and sometimes messy. You might be able to get a better deal without it. Etc. But you can at least start with an analysis of whether you are likely to win.
Last week, the government made it slightly easier to do so when it finally posted its official “Notice of Violation” for alleged antisemitism at Columbia. Though ordinarily (which is to say, legally), this should have come long before any funds to the university were cut off, it’s helpful to have the Notice so that we can see what the government ostensibly thinks its case against Columbia is.
We asked a member of our law faculty to read the Notice and comment. They found it shoddy, poorly argued, and unconvincing. (Remarkably, for example, the government believes that the cancellation of last year’s Commencement ceremony was… a civil rights violation.) The law professor does not think this Notice would stand up in court. Here is their admittedly quick and incomplete analysis, typed into a phone messaging app. “There are four things that strike me as concerning,” they write:
1. Legal Standard:
A. Hostile Environment
To establish a claim that a hostile environment has been created, the federal government must demonstrate that the actions on campus both (a) objectively and (b) subjectively created a hostile environment that impeded student/staff/faculty ability to pursue their education/work. The government must also show a connection between the University’s conduct and the creation of that environment. The Notice of Violation relies only on a subjective standard, which would lead to absurd results. Moreover, they do not clearly connect the behavior of agents of the university (i.e., not students) in creating the alleged environment. In fact, the most egregious examples are attributed to students or non-affiliates. Which brings us to…
B. Deliberate Indifference
If Columbia University failed to intervene in student-on-student harassment, it could be found to be deliberately indifferent under the standard in the Notice of Violation. But the long list of actions taken by Columbia agents, and especially the administration, indicates that Columbia undertook a great deal of action to address actual and perceived anti-Jewish harassment on campus. Moreover, it hired external reviewers to speed up its conduct and investigatory review processes and reached conclusions with discipline up to and including expulsion/termination. I cannot imagine any court finding that Columbia failed to take expedient action to address students’ legitimate safety concerns.
2. Nexus between Federal Funds and Complained-of Action
Title VI requires the government to show a nexus between the use of its funds and the complained-of conduct. I found it alarming and telling that not a single finding of fact related to the Columbia University Irvine Medical Center [CUIMC], except a note about the Dean of the School of Nursing meeting with a student regarding the student’s concerns of bias. It is unclear how the medical campus’s research funds could be suspended for the actions of non-CU employees/agents primarily on the Morningside campus.
3. Wrong Educational Legal Standards
The Notice of Violation relies heavily on cases regarding K-12 education, in which schools exercise greater control over students during the day and often act in loco parentis. This is not the proper standard to apply to a university, where nearly all students are adults and the university does not have the same custodial relationship with students as school boards have with children. The conflation of standards, here, ascribes more responsibility to Columbia than is reasonable, especially when compared to other university campuses.
4. Insufficient Fact-Finding
Both the speed and sources of the “facts” in the Notice of Violation are concerning. True Title VI investigations usually require months of document review, site visits, interviews with complainants and Columbia administration, etc. (Think 6 months to 1-2 years.) Based on the Notice of Violation, it appears that HHS bypassed the normal investigatory process in a rush to justify its unlawful decision to revoke funds. This means it’s primarily relying on hearsay reporting without independent verification of that information. Although hearsay is permitted in administrative investigations, it is preferable to have original source evidence, or at least to consider the investigative findings that stemmed from those complaints. It should also play a more neutral role in which it does not presume the funding recipient to have violated Title VI until the facts back up that determination. Rigorous fact finding is missing from this Notice of Violation, as is any even-handed consideration of the facts. Instead, the Notice of Violation reads as if the goal was to prove a violation and then to marshal facts. For example, the government’s the reliance on the cancellation of commencement as a deprivation of educational experience sufficient to create a hostile educational environment is a great example of a weak factual basis for their conclusions. The government leans on this example because there are not adequate examples of Columbia University agents directly creating a hostile environment even in its (admittedly deficient) findings of fact.