Plaintiffs’ lawyers argue antisemitism case against Penn should proceed

A lawyer for students who accused the University of Pennsylvania of mishandling antisemitism complaints argued in appeals court Wednesday that Penn failed to enforce its rules and adequately respond to assaults and other egregious behavior and said their case should be allowed to proceed.

The case — which followed Hamas’ Oct. 7, 2023 attack on Israel and the turmoil that ensued on college campuses, including Penn, over antisemitism allegations — was dismissed without prejudice by now retired federal court Judge Mitchell S. Goldberg last June.

The appeal hinged on whether plaintiffs could prove that Penn showed “deliberate indifference” in its response to antisemitism complaints.

» READ MORE: Federal lawsuit alleging mishandling of antisemitism at Penn is dismissed

“Penn’s inaction paved the way for more lawless conduct,” argued Amit Vora, the lawyer for the plaintiffs, and left student complainants unable to feel secure on campus and hindered their right to learn.

“They amplified the antisemitism on campus,” Vora said.

Vora made the argument before the three-member Third Circuit Court of Appeals, two of who were appointed by President Donald Trump and the third by former President Joe Biden. The court did not immediately render a decision.

» READ MORE: Penn is creating an office of religious and ethnic inclusion, following concerns about antisemitism on campus

Seth P. Waxman, the lawyer for Penn, cited a list of actions the university took, including forming an antisemitism task force and enhancing security, at a time when colleges nationally were scrambling to cope with the political dispute playing out on their campuses. Plaintiffs, he said, failed to prove Penn’s response was deliberately indifferent to students’ complaints.

“This is simply not a case in which you can say Penn intentionally discriminated against its students,” he said.

While Penn engaged “perhaps imperfectly” in trying to address complaints, he said “this is the case of a university that did anything but abandon its students.”

The suit was filed in December 2023 by current and former Penn students Eyal Yakoby, Jordan Davis and Noah Rubin and the group Students Against Antisemitism Inc.

» READ MORE: Penn’s antisemitism case dismissed by U.S. education department, citing a lawsuit containing same allegations

The plaintiffs had alleged that Penn “permitted, tolerated and/or facilitated multiple antisemitic incidents on its campus that have created a hostile educational environment for Jewish students.”

They said because of incidents and protests on campus, they had to miss classes and activities, felt threatened and unsafe on campus, and felt they could not wear certain clothing or jewelry and speak their views and had to hide their Jewish identities.

Judge Jennifer Lee Mascott asked Vora to “unpack” how Penn’s response to incidents — which were “heartbreaking and awful” — showed indifference. Vora had described the drawing of a swastika inside a building, assaults, a bomb threat and takeover of spaces on campus by pro-Palestinian protesters.

“Is it your view Penn should have acted in a certain time period?” the judge asked.

Vora said two days after one of his clients met with Penn and raised concerns, buildings serving Jewish students were vandalized.

That was a case, he said, where a student was “pleading for security” and “Penn has dropped the ball.”

When a bomb threat was called in, he said the school did not issue a timely alert to students. His plaintiffs only found out when they were sitting in one of the targeted buildings where Jewish students gather and they inquired why bomb-sniffing dogs were there.

But Waxman contended that the university immediately investigated, secured the buildings and alerted the Federal Bureau of Investigation. Whether the university should have triggered its alert system was a “judgment call,” he said, but did not show deliberate indifference.

Judge Peter J. Phipps said while Penn did respond to incidents, they seemed to “keep getting bigger,” raising questions about the efficacy of Penn’s response and whether that should be a factor in the decision.

“It strikes me that Penn is a step behind,” he said.

Waxman said events were not getting bigger and that plaintiffs hadn’t alleged that in the case.

In dismissing the case last June, Goldberg, the judge, said plaintiffs’ filing was too unfocused and included “sweeping allegations of ideological, philosophical, religious, and political concerns and grievances, that have nothing to do with a federal lawsuit.” He gave them the chance refile the complaint on two of the counts, but warned about including material that is not relevant.

“I could find no allegations that Penn or its administration has itself taken any actions or positions which. even when read in the most favorable light, could be interpreted as antisemitic with the intention of causing harm to the Plaintiffs,” Goldberg wrote at the time.

Plaintiffs, however, decided to appeal to the Third Circuit Court.

Goldberg spoke last month about threats he received following the dismissal.

“It got to the point where I had the U.S. Marshal following me around for two weeks because there were calls to put a bullet through my head and lynch me,” Goldberg said.

He was accused of being antisemitic, he said.

“My last name is Goldberg,” he said, noting he was “Bar Mitzvahed.”