In the lawsuits addressing campus antisemitism after October 7, 2023, courts have consistently recognized discrimination claims based on anti-Zionism. Here is a list of just eight of them.¹ (I am an attorney working on two of them.)

Despite that record, one losing case has drawn more attention than all the wins combined. In 2024, Jewish students and StandWithUs (“SWU”) sued MIT, alleging that anti-Zionist protests after October 7 created a hostile environment. The federal district court dismissed the complaint. They appealed, and in October 2025, at the First Circuit, they lost again. In late June, SWU petitioned the Supreme Court to hear the case. Eight amicus (friend of the court) briefs were filed in support. They argue the First Circuit made a mistake.

But the mistake was in the plaintiffs’ complaint, not in the court’s dismissal. SWU is a good organization, and I write as someone who wants our community to have the best legal strategy available. Rather than ask why they lost so decisively, SWU and its amici contest the decision on the theory that courts do not sufficiently recognize anti-Zionist discrimination. That reading is wrong, and it is doing harm: it tells Jewish students the courthouse doors are closed, and some of them will believe it — when eight courts have just held otherwise.

It is also a diversion. A great deal of antisemitic discrimination goes unaddressed, and this much effort has gone to a case that failed at the pleading stage. Eight amicus briefs cannot cure a defective complaint. The same resources, aimed at new lawsuits pleaded around conduct rather than speech, would be far more productive.

One of the organizations supporting SWU at the Supreme Court with an amicus brief is the Center for Jewish Legal Studies (“CJLS”), founded by law professors Rona Kaufman of Duquesne and Andrea J. Martin of Penn State Dickinson. CJLS argues that, given its roots in antisemitic doctrine, hearing anti-Zionist speech on campus may cause Jewish students to experience a hostile environment.

In a Facebook post announcing the brief, Kaufman explained what it does not do: “We do not seek to make a new legal category. We do not seek to change law. We do not seek to limit First Amendment protection.” But the brief asks a court to decide that some political speech is better than others. Whether she intends to create a new rule or not, that is what happens when you propose a rule that conflicts with the existing one. The brief never acknowledges the present conflict, so it never justifies why the rule should be replaced.

A century of settled law

The distinction at issue — what type of speech is of the highest value in a democratic society — is not a recent development. It rests on the principle the First Amendment was written to secure. Justice Louis Brandeis, the first Jewish member of the Supreme Court, put it in 1927: “those who won our independence believed … that public discussion is a political duty; and that this should be a fundamental principle of the American government.” Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). The Court has restated the rule ever since, most familiarly that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 458 (2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).

Courts applying Title VI have drawn the necessary conclusion: political speech on matters of public concern, without more, cannot create a hostile educational environment. See Gartenberg v. Cooper Union, 765 F. Supp. 3d 245, 274 (S.D.N.Y. 2025). CJLS never explains what is wrong with this reasoning. It cites the controlling case, Snyder, once, as a disclaimer, but never explains how it applies.

If CJLS had analyzed Snyder it would have seen that its arguments were previously considered and rejected. CJLS argues that certain speech is hateful in historical context, and so it should be capable of creating a hostile environment. In Snyder, protesters picketed near a funeral holding homophobic signs about what God thinks of gay people. The father of the deceased sued. There was no debate that the signs were vicious and offensive. That is what makes the case instructive: the Court took it knowing exactly how repellent the speech was. Yet the Court held that the speech was protected because it........

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