Antisemitism remains a significant concern in this country and abroad, including on college campuses, and recent litigation raises important questions about how existing civil rights protections apply to Jewish students.
Religious discrimination against Jews and people of other faiths has grown and, despite being in a protected class, they continue to be treated differently from other protected classes even under the very discrimination laws designed to protect them. A case in point is the government’s recent lawsuit against Harvard. U.S. v. President and Fellows of Harvard College (D. Mass. 2026) (No. 26-11352).
On August 13, 2026, a federal district court judge, and Harvard Law School graduate, granted Harvard’s motion to dismiss the lawsuit filed by the Department of Justice in March. The lawsuit alleged that Harvard failed to adequately address antisemitic activity on campus that resulted from student protests concerning Israel’s military actions in Gaza. The lawsuit asserted that Jewish students endured intentional discrimination and a hostile environment at Harvard since the brutal October 7, 2023 attacks in Israel and sought to recover billions of dollars Harvard received in federal grants under Title VI of the Civil Rights Act of 1964’s prohibition against discrimination based on national origin and ethnicity.
Despite the Complaint’s details of various instances of hostility directed at Jews, the Court made a factual determination that the incidents were “isolated and episodic” and did not support a plausible inference of ongoing noncompliance with Title VI. The Court’s decision, which can be found here, did not discuss any of the specific facts in the Complaint, other than to refer in a footnote to other decisions containing the facts, and failed to address any case law on point. The DOJ is considering an appeal but one is left to wonder whether the decision would have been the same had the conduct been directed at other protected classes rather than Jews.
The discrimination Jews experience under the discrimination laws drafted to protect them was addressed in the landmark decision of the New Jersey Supreme Court in Cutler v. Dorn, 196 N.J. 419 (2008), where the Court held that New Jersey courts must treat religion-based hostile work environment claims with the same severity as racial or sexual harassment claims, rejecting the argument that bigoted slurs or taunts were harmless workplace ribbing. (“Consistent with the state’s strong policy against any form of discrimination in the workplace, we hold that the threshold for demonstrating a religion-based, discriminatory hostile work environment cannot be any higher or more stringent than the threshold that applies to sexually or racially hostile workplace environmental claims”). In Cutler, the New Jersey Supreme Court concluded that there was ample evidence that the workplace was objectively hostile such that a jury should decide the claim. In my opinion, the trial judge in the Harvard case should have concluded the same or at least addressed the facts and law that led him to his decision to throw the case out on a motion to dismiss under Fed.R.Civ.P. 12(b)(6) and without indicating whether the DOJ would have an opportunity to replead.
The key takeaway for employers, or those conducting investigations of hostile environment claims, is to treat facts with equal weight regardless of the type of discrimination being alleged. In fact, the law requires one to decide what a reasonable person would find offensive if that person was in that particular protected class.
The opinions expressed herein are those of the writer and do not necessarily express the opinions the law firm.
Read link to the full decision here.