The Baffling Opinion in the Yakoby v. University of Pennsylvania Title VI Case

I recently read the complaint and district court opinion in Yakoby v. Trustees of University of Pennsylvania. The plaintiffs brought several claims against Penn, including that Penn tolerated a hostile environment for Jewish students in violation of Title VI of the 1964 Civil Rights Act. The case is currently on appeal to the Third Circuit.

In June, district court judge Mitchell S. Goldberg dismissed the Title VI complaint with the remarkable assertion that “At worst, Plaintiffs accuse Penn of tolerating and permitting the expression of viewpoints which differ from their own.”

I say remarkable, because the plaintiffs did in fact make a series allegations that went well beyond (and in most cases had nothing to do with) Penn “tolerating and permission the expression of viewpoints” the plaintiffs disagreed with, including:

(1) Penn received antisemitic emails threatening violence against Penn Hillel and failed to warn students about the threats.
(2) Penn allowed faculty to punish students for refusing to attend anti-Israel ideological events, and to harangue students in class in an abusive manner if they disagreed with the professors’ extreme anti-Israel views.
(3) Penn Chabad house was defaced with antisemitic graffiti, with no public response from the university.
(4) A mob that had previously vandalized an Israeli-owned restaurant marched across campus chanting violent “intifada” slogans and defaced campus buildings with no resistance from the Penn administration, which failed to warn Jewish students of the mob or call in law enforcement despite its illegal acts.
(5) Penn threatened Jewish students who complained about discrimination or a hostile environment with retaliation if they pursued their complaints.
(6) Penn enforced its disciplinary rules in a discriminatory manner, for example punishing Professor Amy Wax for allegedly racist statements, but claimed that academic freedom preventing the university from punishing professors who made antisemitic statements. (FWIW, I think this is quite a strong allegation for a discrimination claim based on differential treatment, without needing a hostile environment twist).

The court could have taken these allegations at face value, as it’s required to do at the motion to dismiss stage, and then decided whether the allegations, if proven, would in context show a severe and pervasive hostile environment as required under Title VI. Instead, for reasons known only to Judge Goldberg, the court simply ignored all of these allegations and pretended that the plaintiffs merely objected to being exposed to viewpoints they didn’t like.

The ruling deserves a quick reversal. I was going to suggest assignment to a different judge on remand, but it turns out that Goldberg retired in September.

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