29 Summer 2025 These contrasting decisions provide guidance on an important pleading requirement in making out a claim for discrimination under Title VI. The plaintiffs in the MIT case claimed that MIT fostered a hostile environment for Jewish and Israeli students by allowing the protests on campus by anti-Israel and antisemitic students. Judge Stearns held, however, that while objectionable, these incidents did not meet the definition of discrimination under Title VI, which requires evidence of severe, pervasive, and objectively offensive conduct that effectively denies access to educational benefits. In contrast, many of the incidents on campus were attributable to students, student groups, or outsiders, and MIT could not be held responsible unless it knowingly tolerated the actions or facilitated the discrimination, which was not plausibly alleged. A few months after the second of the Harvard decisions, in January 2025, Harvard settled both Title VI lawsuits. Like the NYU settlement, Harvard’s settlement terms included that Harvard agreed to incorporate the IHRA definition of antisemitism into its Non-Discrimination and Anti-Bullying Policies (“NDAB”), accompanied by examples of prohibited anti-Zionist conduct. Harvard also agreed to post a Frequently Asked Questions document on its website related to the NDAB, clarifying that identifying as Jewish and Israeli is protected by the NDAB with the following statement: For many Jewish people, Zionism is a part of their Jewish identity. Conduct that would violate the Non-Discrimination Policy if targeting Jewish or Israeli people can also violate the policy if directed toward Zionists. Examples of such conduct include excluding Zionists from an open event, calling for the death of Zionists, applying a “no Zionist” litmus test for participation in any Harvard activity, using or disseminating tropes, stereotypes, and conspiracies about Zionists (e.g., “Zionists control the media”), or demanding a person who is or is perceived to be Jewish or Israeli to state a position on Israel or Zionism to harass or discriminate.12 Other settlement terms included that Harvard agreed to hire an individual who will be responsible for consulting the school’s Office for Community Conduct (“OCC”) on all complaints of antisemitism, as well as for supervising the preparation of annual reports, and that Harvard agreed to invest in academic resources to study antisemitism and to establish a recognized partnership with a university in Israel. While Harvard did not admit to any wrongdoing, it agreed to pay an undisclosed amount to the plaintiffs, which included students, the Louis D. Brandeis Center for Human Rights Under Law (the “Brandeis Center”), Jewish Americans for Fairness in Education, and Students Against Antisemitism.13 Several other academic institutions have also elected to settle complaints filed with OCR, rather than with the courts, on terms that trend towards a comprehensive approach to combatting antisemitism on campus, while also balancing students’ right to protest. For example, in July 2024, Brown University reached an agreement to resolve an OCR complaint filed by the editor of the CampusReform.org. The settlement terms to which Brown agreed include (a) ongoing nondiscrimination training for Brown community members and an annual training for all faculty, administrators, and students in the 2024-25 academic year; (b) a specific training session, held annually, for administrators and faculty focused on investigating allegations of discrimination and harassment; (c) acknowledging that faculty and administrators are responsible for investigating complaints of discrimination and harassment; and (d) a new policy for ensuring complaints are adequately investigated, whereby if a complainant decides not to proceed with an investigation, the Office of Equity Compliance and Reporting, a new campus initiative, will replace the role of the complainant so that an investigation will be made into the incident. While it agreed to settlement terms, Brown denied that it had violated Title VI.14 12. Press Release, “The Brandeis Center and Jewish Americans for Fairness in Education Agree with Harvard to Settle Title VI Litigation,” HARVARD UNIVERSITY (Jan. 21, 2025), available at https://www.harvard.edu/mediarelations/2025/01/21/press-release-settlement-harvardbrandeis-ctr-jafe/; Jacob Gershman, “Harvard University Reaches Campus Antisemitism Settlements,” THE WALL STREET JOURNAL (Jan. 21, 2025), available at https:// www.wsj.com/us-news/education/harvard-universityantisemitism-settlements-c0c9c1ed 13. Jonathan Stempel, “Harvard settles lawsuits over antisemitism on campus,” REUTERS (Jan. 21, 2025), available at https://www.reuters.com/world/us/harvardsettles-lawsuits-over-antisemitism-campus-2025-01-21/
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