Summary
The United States Court of Appeals for the First Circuit denied petitions for panel rehearing and rehearing en banc in a Title VI dispute involving alleged antisemitic harassment at MIT. Judge Dunlap concurred, expressing concern that the panel addressed more than necessary regarding the relationship between the First Amendment and Title VI and whether the alleged protest speech plausibly indicated antisemitic animus. He stated that the case could have been resolved more narrowly on the issue of MIT's alleged deliberate indifference.
Topics
Practice areas
Questions Presented
- Whether panel rehearing or rehearing en banc was warranted concerning the relationship between First Amendment protection for political speech and Title VI liability for antisemitic harassment.
- Whether protected speech may nevertheless be considered as evidence of discriminatory animus under Title VI.
- Whether the complaint plausibly alleged that the challenged speech was antisemitic and that MIT acted with deliberate indifference to actionable harassment.
- Whether the panel's decision conflicted with Healy v. James, Zeno v. Pine Plains Central School District, Feminist Majority Foundation v. Hurley, or Oncale v. Sundowner Offshore Services, Inc.
Key quotations
“The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied.” (at 1)
“The First Amendment, however, prohibits government restrictions on speech based on its message, ideas, subject matter, or content” (at 2)
“By deconstructing the events and looking at them individually, rather than as a whole, the panel may have missed the forest for the trees.” (at 4)
“if it is not necessary to decide more, it is necessary not to decide more.” (at 4)
Factual background
Plaintiffs alleged antisemitic harassment and discriminatory treatment at MIT in the context of campus protests concerning Israel and Palestine. The allegations included chants such as "Palestine will be free, from the river to the Sea!" and "There is only one solution! Intifada revolution!," an invitation to a speaker who allegedly praised violence against Jews, the establishment of a protest camp near MIT Hillel, exclusion of a Jewish plaintiff from campus locations, and heckling of another visibly Jewish student. Judge Dunlap viewed the allegations collectively as plausibly supporting an inference of antisemitic animus, although the panel had concluded otherwise.
Procedural history
The District of Massachusetts dismissed the Title VI claims after concluding that MIT had not acted with deliberate indifference toward actionable harassment. The First Circuit panel affirmed, holding among other things that Title VI did not require MIT to suppress protected speech and that the alleged protest speech was not plausibly antisemitic. The panel denied rehearing, and the First Circuit's active judges declined rehearing en banc; Judge Dunlap concurred in that denial.