Allegation: Carnegie Mellon Prof to Jewish Student: Time on Jewish-Related Project “Would Have Been Better Spent” Exploring “What Jews Do To Make Themselves Such a Hated Group”
Some excerpts from Canaan v. Carnegie Mellon Univ., decided Tuesday by Judge Scott Hardy (W.D. Pa.); the opinion is 15,000 words, so this can only give a flavor of the matter. First, the allegations from plaintiff’s Complaint (which, at this stage of the case, the court assumes to be factually accurate in determining whether the plaintiff has a legal basis for her claim):
Ms. Canaan was taking one of her required studio classes where students receive hands-on, practical instruction in architectural design, making models and applying lessons learned in their other classes. These studio classes typically involve small groups, open discussions, and one-on-one meetings with professors. Students receive critically important feedback individually as well as in small group and class-wide settings. On May 5, 2022, Ms. Canaan had the final review for her semester-long studio class project, which was a model she designed depicting the conversion of a public space in a New York City neighborhood into a private space through an eruv (i.e., an integral feature of neighborhoods with large devout Jewish populations). {Plaintiff’s Complaint describes an eruv as a “small wire boundary that symbolically extends the private domain of devoutly religious Jewish households into public areas, permitting activities within it that are normally forbidden in public on the Sabbath.”}
In response to questions, Ms. Canaan was explaining the concept of an eruv to Mary-Lou Arscott, Professor and Associate Head for Design Fundamentals at the School of Architecture …, when Professor Arscott cut Ms. Canaan off and told her that “the wall in the model looked like the wall Israelis use to barricade Palestinians out of Israel,” and that the time Ms. Canaan had used to prepare her project “would have been better spent if [Ms. Canaan] had instead explored ‘what Jews do to make themselves such a hated group.'” …
[Discussion of Canaan’s complaints to CMU, and CMU’s allegedly dilatory and inadequate responses, omitted. -EV] [A]pproximately six months after Professor Arscott had directed offensive comments at Ms. Canaan in Ms. Canaan’s studio class[, ]CMU’s administration finally scheduled a meeting with Ms. Canaan and Professor Arscott over Zoom on November 2, 2022. The Complaint describes this Zoom meeting as an unproductive endeavor: the meeting took place, but Vice Provost Heading-Grant said and did nothing as facilitator, Professor Arscott refused to apologize and showed no remorse, and, further, Professor Arscott referenced and subsequently emailed contents of a blog titled “The Funambulist” to Ms. Canaan and Vice Provost Heading-Grant. Professor Arscott urged Ms. Canaan to read the contents of The Funambulist that she linked in the email because it provided her with “insightful … perspective.”
According to the Complaint, The Funambulist contains anti-Jewish and anti-Israel content, including, among other things, the promotion of pictures of terrorist organizations throwing Molotov cocktails at Jewish people and articles with titles such as “Israeli Apartheid” and “Israeli Police: The Daily Practice of Collective Punishment Against Palestinians.” A sample passage from one article, dated April 8, 2022, that could be considered particularly pertinent to Ms. Canaan’s circumstances and Professor Arscott’s refusal to apologize reads: “[Y]ou never make concessions to the oppressor. If you’re going to get punished, and you might, if you piss off Zionists, it’s always a possibility, right, then stare the oppressor in the face, and take whatever punishment is coming. Don’t concede, don’t start apologizing …. The Palestinians aren’t backing down, nor should we … [we] do not make concessions to the oppressor.”
There are further allegations, including:
In addition to her averments concerning the CMU staff discussed above, Ms. Canaan also avers that Professor Theodossis Issaias, a personal friend loyal to Professor Arscott, also harbored unlawful animus towards her. According to Ms. Canaan, she sought out Professor Issaias to assist and guide her concerning the antisemitic treatment she had endured due to Professor Arscott’s statements and actions, but Professor Issaias nevertheless invited Ms. Canaan’s entire class to a party at Professor Arscott’s home. When Ms. Canaan expressed how disturbed she was by the location of this social gathering, Professor Issaias told Ms. Canaan that “breaking bread is a process of reconciliation,” Ms. Canaan needed to stop “acting like a victim,” he was “not there to fight her battles for her,” Ms. Canaan was “calling all of us antisemites,” and that he “cannot be an advocate for the Jews.”
Professor Issaias then became aggressive toward Ms. Canaan in front of her classmates—so much so that several classmates asked Ms. Canaan what she had done to draw his ire—and he refused to work with Ms. Canaan, including for critical one-on-one attention that he gave to all of Ms. Canaan’s classmates in the architecture program’s practical skills studio coursework, thereby causing her to lose individualized feedback. Professor Issaias gave Ms. Canaan a C in his 18-unit studio class—the lowest studio grade Ms. Canaan ever received at CMU—which prevented her from receiving an Honors degree and put her scholarship at risk. Professor Issaias also gave Ms. Canaan a lower grade than classmates in her same group for a group project….
The court allowed plaintiff’s discrimination claim to go forward:
A careful examination of Ms. Canaan’s Complaint reveals numerous factual averments that plausibly show that CMU intentionally discriminated against her through its deliberate indifference because she is Jewish and of Israeli descent. Ms. Canaan’s averments plausibly show that she was met with roadblocks time and again after her encounter with Professor Arscott on May 5, 2022, when Professor Arscott told Ms. Canaan that she should have focused on exploring “what Jews do to make themselves such a hated group” instead of working on her semester-long architecture studio class project. The parties expressed at Oral Argument that they are generally in agreement that this comment—asking a student to consider what his or her racial, ethnic, or religious group does to make themselves “hated”—is (if true) offensive. And yet, according to Ms. Canaan, she received only the façade of action from those administrators at CMU who “knew that a harm to a federally protected right was substantially likely.” …
At this stage of the litigation, any reasonable inference that can be drawn from these factual allegations must, of course, be drawn in Ms. Canaan’s favor. It is the Court’s determination that Ms. Canaan’s allegations are sufficient to show that CMU failed to meaningfully react to Professor Arscott’s offensive and discriminatory interactions with Ms. Canaan. The CMU executives responsible for addressing discriminatory mistreatment of a Jewish student, such as Ms. Canaan, failed or refused to prevent or sufficiently stop it. Indeed, the Dean of Students, Vice Provost of DEI, School of Architecture Director of DEI, and the Title IX Coordinator and Assistant Vice Provost of DEI, all knew of Professor Arscott’s racially and ethnically offensive conduct directed at Ms. Canaan, but showed deliberate indifference toward Ms. Canaan’s federally protected right not to be discriminated against on the basis of her Jewish identity.
The court allowed plaintiff’s hostile educational environment harassment claim to go forward:
[I]n considering the totality of circumstances, the Court also evaluates the instances of harassment purportedly perpetrated by Professor Arscott in the context of her position, role, and relationships with Ms. Canaan, her fellow professors, and important CMU administrators. In this regard, Ms. Canaan’s Complaint contains facts supporting inferences that Professor Arscott is in a position of authority and influence over students and certain colleagues and administrators….
Professor Arscott’s averred relationships with CMU’s administrators responsible for administering CMU’s policies prohibiting discrimination and harassment also reasonably suggests that Professor Arscott had influence with them, too…. It is reasonable to infer from those facts not only that Ms. Canaan was subject to instances of harassment (e.g., being asked what Jewish people do to make themselves hated, reinforced later by Professor Arscott’s refusal to apologize followed by The Funambulist email), but also that [CMU administrators] were deliberately indifferent to Professor Arscott’s putative bigotry….
{Additionally, though more attenuated, the Court must also take as true and consider Ms. Canaan’s factual averments that CMU received more than a half billion dollars in funding from Qatar from 2004 to 2019, that Qatar “shelters and protects antisemitic, anti-Jewish, and anti-Israel terrorist organizations,” that Professor Arscott spent time professionally in Qatar where CMU maintains a campus, and that CMU’s lucrative relationship with Qatar influences both CMU’s and Professor Arscott’s treatment of Jewish students such as Ms. Canaan.}
Not only that, but when the Court also considers Ms. Canaan’s allegations concerning Professor Issaias, a reasonable inference of pervasiveness of harassment and deliberate indifference also arises. Professor Issaias’s response to Ms. Canaan’s sharing that she had been harassed by Professor Arscott was to: invite Ms. Canaan to a gathering at Professor Arscott’s home; tell Ms. Canaan to stop “acting like a victim”; complain that Ms. Canaan was “calling all of us antisemites”; and, further, to inform Ms. Canaan that he could not “be an advocate for the Jews.”
Thereafter, Professor Issaias denied Ms. Canaan one-on-one instruction and became so hostile toward her in class that his behavior drew the attention of her classmates and prompted them to ask her “what she did to cause Issaias to treat her so poorly.” Professor Issaias also gave Ms. Canaan a lower grade than classmates who were part of her group project and omitted her work from a booklet he compiled of every other student’s work for those students who were in the class that semester.
Ms. Canaan alleges that she informed Assistant Vice Provost Rosemeyer of Issaias’s conduct—including that he had subjected her “to further antisemitic abuse” and of her low grade in his class, but instead of addressing the harassment aspect of her complaint Rosemeyer offered only to refer Ms. Canaan to grade appeals and connect her to emotional support groups. Drawing all inferences in Ms. Canaan’s favor, Ms. Canaan’s allegation that Assistant Vice Provost Rosemeyer ignored her reports of Issaias’s discrimination supports an inference of failure to act, i.e., a clearly unreasonable response when presented with alleged antisemitic harassment.
{In addition to the encounters in 2022 and 2023 described in this section, the Court also acknowledges that Ms. Canaan avers that in May 2021 she sent an email to CMU’s President Farnam Jahanian and Dean Casalegno expressing her concerns of antisemitism on CMU’s campus and telling them that Jewish students “no longer feel safe on this campus” after the president of a student group posted a message in a 5,700 member Facebook group implicating Jewish students in the tensions and aggressions related to Israel and Gaza and disseminating screen shots of internal emails from the campus Jewish community that made it easy to identify Ms. Canaan and other Jewish students on campus. CMU argues that this incident was not attributable to the University, and the Court acknowledges that point. Nevertheless, the Court assumes this, like all of Ms. Canaan’s other averments, is true and considers it as part of the totality of circumstances relevant to Ms. Canaan’s Title VI claims.}
The court also allowed plaintiff’s retaliation claim to go forward, partly based on the Issaias allegations. The court allows plaintiff’s breach of contract claim to go forward, based on the argument that CMU’s alleged behavior “breached its contractual obligations set forth in its … Policy Against Retaliation [and] … Title IX Resource Guide.” But the court reject plaintiff’s intentional infliction of emotional distress claim, reasoning that:
The Court cannot find an averment in Ms. Canaan’s Complaint that would allow it to infer that the alleged extreme and outrageous conduct she endured—predominantly by Professor Arscott—was ‘actuated, at least in part, by a purpose to serve the employer’ [and could thus lead to liability for CMU]. For that reason, the Court will dismiss Ms. Canaan’s IIED claim, albeit without prejudice to amendment should she seek to cure the deficiency addressed herein.
I think the First Amendment should generally prevent Title VI liability for professors’ anti-Israel speech said to the public, or to classes generally—and, I think, even outright anti-Jewish speech. But here there are allegations that a professor had singled out a student because she did a Jewish-related project; that the professor’s later sending anti-Israel materials to the student was tied to that; and that another professor had given the student an unfairly low grade in retaliation for the student’s discrimination complaints. Again, recall that these are just allegations; any actual fact-finding would come later in the case.
Albert Tagliaferri, Alexander Rabinowitz, Bryce Friedman, Jamie Fell, Michael Torkin, and Zachary J. Weiner (Simpson Thacher and Bartlett LLP) and Ziporah Reich (The Lawfare Project).
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