Last fall, LDB put anti-Semitism on the Supreme Court’s docket in the cases of SFFA v. President and Fellows of Harvard College and SFFA v. University of North Carolina. The plaintiffs in these cases alleged that affirmative action programs operated by Harvard and by UNC had the effect of discriminating against Asian-American applicants on the basis of race. The Brandeis Center, together with the Silicon Valley Chinese Association Foundation, filed an amicus brief authored by Jonathan Vogel of the Vogel Law Firm. LDB’s brief significantly informed the Court’s and the litigants’ understanding of the historical background of discrimination and quotas in American university admissions, and particularly how they had previously been used to exclude Jewish applicants. We filed a similar amicus brief in Fisher v. University of Texas in 2012. . The Brandeis Center’s brief describes how Harvard systematically discriminated against Jewish applicants in the 1920s. President Lowell of Harvard changed the admissions process in 1920 to lower the number of Jewish students. To disguise this intention, Harvard limited total enrollment and began to admit only students of suitable “character and fitness.” This equipped Harvard with a subjective measure to use to eliminate otherwise-qualified applicants. Knowing that Lowell thought Jews lacked character, the admissions office subsequently lowered the percentage of Jewish students to 15 percent from its peak of 28 percent. . Today, Harvard uses a similar subjective metric—a “personal rating.” The Brandeis Center’s brief noted evidence that this unfairly impacts Asian-American applicants because they receive lower personal rating scores, on average, than applicants of other races. The lawsuit alleges that Harvard systematically gives Asian-Americans lower scores to ensure fewer Asian-American students are admitted. If true, this mimics the anti-Semitic discrimination of the 1920s – using a subjective factor to discriminate against a particular group of applicants. . The parties to the Harvard case referred to the Brandeis Center’s brief, and the history of anti-Semitic discrimination the brief addressed, throughout oral argument. In SFFA’s opening statement, they compared the alleged discrimination in the case to the discrimination against Jewish students in the 1920s. Justice Gorsuch highlighted Harvard’s dark history later in the case when questioning Harvard’s attorney about their current practices, asking what to do with the fact that history shows that Harvard’s original move to a holistic application process was motivated by the desire to impose a quota on Jewish applicants. In response, Harvard acknowledged its past anti-Semitic discrimination and said it was ashamed of that history. SFFA referred to this statement again in rebuttal, saying “Harvard thankfully does say it is ashamed of its history of Jewish discrimination. I hope someday it says the same about how it’s treating Asians.” . Justice Neil Gorsuch also brought up the history of anti-Semitic discrimination in Harvard’s admissions which was identified in the Brandeis Center’s brief in the UNC case, noting evidence from “some of the amici” that Harvard’s holistic admissions policy was used to discriminate against Jewish applicants. . Justice Samuel Alito also criticized Harvard for its history of anti-Semitic discrimination. In Bakke v. University of California, Justice Lewis F. Powell, Jr., had held up Harvard’s admission program as an exemplar for the country. Harvard’s brief in that case talked about the prior thirty years of Harvard’s admissions program. Based on that history, Justice Alito asked Harvard if their omission of their history of anti-Semitic discrimination was selling “Justice Powell a bill of goods” and whether knowing the origins of the Harvard program would have impacted Justice Powell’s decision. Harvard responded that Justice Powell took Harvard’s brief as an accurate description of how its admissions process worked then, but did not take the “terrible stain on its history” of its past anti-Semitic discrimination into consideration. . National media covered our brief when it was filed and quoted LDB Chairman Kenneth Marcus. After the argument, local media in North Carolina again amplified our brief in its coverage of the litigation. . In these cases, the Court must determine if colleges are illegally imposing preferences and limitations on racial and ethnic groups. This decision will have major ramifications on the future of higher education. The Brandeis Center’s brief has ensured that Harvard’s history of discrimination against Jewish students is an important part of the Court’s deliberations.
On June 19, the Supreme Court decided in Matal v. Tam that the government cannot refuse to trademark potentially derogatory or offensive names, a decision that will likely impact the national debate about hate speech and the First Amendment for decades. This ruling means that though hate speech remains constitutionally protected as a general matter, harassing conduct remains subject to civil rights laws. The Supreme Court of the United States The case arose when a rock band known as “The Slants” attempted to trademark their band name with the U.S. Patent and Trademark Office (PTO). The band’s request was denied because the trademark would be in violation of the Lanham Act, a federal statute that includes a “disparagement clause” that precludes the PTO from trademarking names that may “disparage” individuals or groups. The term “slant” is considered an ethnic slur directed towards the Asian community. The Court unanimously agreed that the “disparagement clause” violates the First Amendment, but was split as to how. The Court unanimously agreed that the trademarks are not government speech but are inherently private speech because they are the mental creation of a private party. Previously, the Court had determined that government speech was not subject to the First Amendment, and in this decision, Justice Alito warned against the danger of applying the government-speech doctrine too liberally. Supreme Court Justice Samuel Alito delivered the opinion of the Court. Then, Justice Alito was joined by Chief Justice Roberts and Justices Thomas and Breyer in refuting the government’s claims that trademarks were government-subsidized speech, which is not subject to the First Amendment. The Court reasoned that because the filer of a trademark was the party paying a trademark fee, instead of vice versa, this argument was invalid. Then, Justice Alito rejected the government’s argument that a trademark is commercial speech, which is subject to less First Amendment protection. Alito worte that even if it were commercial speech, the denial of a trademark application would not pass the test used to evaluate restrictions on such commercial speech. In a separate opinion, Justice Kennedy was joined by Justices Ginsberg, Kagan and Sotomayor in determining that the “disparagement clause” was solely unconstitutional because it is an example of the government using its own judgment to discriminate against certain trademark requests, while allowing for others it finds more appropriate, constituting what the Court deems “viewpoint discrimination.” Justice Kennedy concludes by stating that “viewpoint discrimination” inherently violates the First Amendment and its purpose to create a “free and open discussion in a democratic society.” The Court’s decision builds upon a trend taken by the Supreme Court in recent years to rule in favor of free speech protections, perhaps most notably in 2011, when the Court in Snyder v. Phelps protected the Constitutional right of protesters to use homophobic and otherwise offensive language outside of a military funeral. Many free speech advocates are calling the Matal ruling a victory for the First Amendment, with the Court further defining free speech jurisprudence that will check government interference with even limited restrictions on free speech. In particular, the Matal decision is being celebrated by the Washington Redskins, the professional NFL team that has been engaged in legal battles since 2014, when PTO refused to renew the team’s trademark over the term “Redskins”, which is perceived to be an offensive slur for Native Americans. Others fear the Matal decision, asserting that it could provide new grounds for hate groups and others looking to trademark names and other materials that could incite hatred or worse for minority groups. The Court has long upheld that hate speech that rises to the level of harassment- at least in cases of race or gender-based harassment- violates Title VII of the Civil Rights Act. This is unlikely to change going forward, but the Matal decision could further blur the line between what constitutes Constitutionally protected hate speech and what is speech that is harassing and/or likely to incite public disorder. The debate around hate speech and the First Amendment is especially pertinent on college campuses, where in recent years administrators, advocacy groups and other stakeholders have argued over what are the appropriate legal steps to take when students are subjected to hateful language by other students. More than half of all American college and university campuses, including many public institutions, have enacted speech codes which seek to limit when and where students can express themselves on campus. This has coupled with a rise in the occurrence of hate-based incidents on campus, including acts of anti-Semitism. Student protesters at UC Irvine assemble an “apartheid wall” on campus In recent years, numerous speeches and lectures organized by pro-Israel students and faculty on college and university campuses have been silenced by protestors. Notable incidents include Jerusalem Mayor Nir Barkat being shouted down by student protestors at San Francisco State University, the physical provocation of an Israeli professor by a student protestor during a private event at the University of Texas at Austin, and most recently last month, the sabotage by student protestors of an event at University of California-Irvine featuring Israeli veteran soldiers with loud chanting, profanity and accusations of genocide. Various state and municipal statutes and university codes of conduct prohibit the disruption of lawful meetings, affirming that the right to freedom of speech does not include the right to deprive others of their First Amendment rights. The Louis D. Brandeis Center for Human Rights Under Law has worked to protect the rights of Jewish and pro-Israel campus communities to safely and peacefully express themselves.