Macky’s Complaint

In a TOI blogposting here more than a year ago, I observed that the antisemitism on American college campuses is mostly manifested not by the colleges and universities themselves, but by legally separate organizations and faculty unions; this gives the schools themselves some degree of cover from the legal consequences of promoting hostile atmospheres for Jewish students and faculty.

Mackenzie (“Macky”) Forrest, a Jewish graduate student at Columbia University, has filed a lawsuit against the school.  If Macky’s allegations are proven, Columbia University will no longer be able to assert the “they’re not our boys and girls” defense. I now have no information about the litigation that is not on the public record; I have made no contact with Macky or her attorneys, and know only what I have read in the complaint and in the attorneys’ press release.

It is, of course, far too early to speculate how the case will develop, but I do see possibilities for some interesting positive developments; these will now be critiqued.

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For the benefit of those who have never been to law school or otherwise exposed to the litigation process, some basic operative rules for pleading:

Macky’s attorneys have filed the Complaint, and Columbia has presumably been served with it. This particular Complaint contains 230 individual allegation paragraphs (most of which are single sentences), almost all of them except the introductory paragraphs are averments of fact requiring a response by Columbia in their Answer. There basically are three types of responses to an allegation: (1) Admission that the allegation is true; (2) Denial that the allegation is true; and (3) Lack sufficient knowledge or information to form a belief as to whether the allegation is or is not true.

A defendant may partially deny and partially admit and/or claim insufficient knowledge, but must specify details as to which part of the allegation is subject to which part of the response.  Failure to either deny or aver insufficient knowledge constitutes an admission.

Also named as defendants are Columbia’s president, Minouche Shafik; Andre Ivanoff, director of the academic program in which Macky had been enrolled; and Elizabeth Creel, Macky’s academic advisor.  The naming of these Columbia employees as defendants has some potential implications that will be touched upon here in due course.

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Macky’s Complaint contains some very interesting allegations that place Columbia into an uncomfortable posture.  For example, Paragraphs 29 and 31 (Paragraph 30 is a detailed expansion of Paragraph 29):

29. The events in Israel and Gaza in October 2023 unleashed an explosion of antisemitism on the Columbia campus, rendering it, at least temporarily, unsafe for Jewish students. …

31. In the face of this intimidation and violence, other than issuing empty statements of “condemnation,” Columbia did little or nothing to protect Macky or other Jewish students.

If Columbia admits to these allegations (whether by explicit admission or by failing to deny), then it will have opened the door for Macky’s attorneys to prove almost all of the other allegations of the Complaint.  If, on the other hand, Columbia denies these allegations (or, better yet, asserts insufficient knowledge to form a belief), then, in addition to placing a very serious cloud upon its credibility, it will subject itself and its administrators to public ridicule by such denial alone, and all the more during trial when Macky’s attorneys go about presenting their evidence to prove the allegations.

Other allegations having similar debilitating potential against Columbia include (but are not limited to) the following:

91. The pro-Hamas and anti-Israel/antisemitic protests continue at Columbia today.

94. Columbia’s Administration has done little or nothing to protect its Jewish community.

95. Jews who dared speak up in support of Israel and the hostages held by Hamas were threatened with physical harm and subjected to verbal abuse. These were not empty threats. For example, one pro-Israel supporter was attacked with a broom and suffered a broken bone by Hamas supporters on Columbia’s campus.

118. Protecting Jewish students at Columbia is simply not a priority.

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The following allegations, which Macky’s attorneys in all likelihood can substantiate, are noteworthy:

58. Macky’s application was so strong that she was admitted into the DBT Program without the need for a second-round interview.

63. As with all her prior classes at CSSW, Macky maintained a perfect grade point average in these two summer classes.

Not all lawyers get “designer clients,” and there are few if any clients who do not have some sort of flaw, weakness, or other shortcoming (else they would not have any legal problems and would not need to engage counsel); indeed, a settlement I reached for one of my own past clients in litigation against his former employer would likely have been for a greater sum but for some exaggerations on the résumé he proffered in the hiring process.

One such client who comes quickly to mind is Michael Sklar, in whose dispute with the Internal Revenue Service the Agudath Israel of America saw an opening to advocate for the deductibility of certain Jewish day school tuition payments.  The Agudath Israel’s advocacy efforts failed to vindicate Sklar and his wife in the extended and contentious litigation.

Back in the day, I caught some flak for suggesting that Michael Sklar was not an appropriate poster child to lead the charge; he was (and still is), after all, a CPA who, while no doubt attending well to the needs of his clients, failed to timely file his own tax return that year, even after obtaining the maximum allowable extension.

[I do not believe that the outcome of the case would have been any different had the tax return been lodged before the deadline, but his tax return may have been selected for review because he was (1) a CPA; and/or (2) a late filer.  For its part, the IRS had no basis to proudly emerge from the litigation, either.].

Macky, on the other hand, seems to not have any attributes to disqualify her as a mace-bearer in what may potentially be a precedential game-changer against schools such as Columbia.

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Macky’s Complaint brings suit on five separate counts:  Against all four defendants, one count under the federal Civil Rights Act and two separate but interoperative analogous New York State statutes.  These are standard fare for discrimination lawsuits brought in New York.

But the other two counts of the Complaint, asserted against Columbia University alone, might well break new legal ground.

Paragraph 212 of the Complaint asserts that “[a]t all times relevant to this complaint, an express and/or implied contract  relationship existed between Macky and Columbia by virtue of her status as an enrolled, matriculated graduate student …”

Count IV is a common law breach of contract claim; it aims to hold Columbia contractual principles by casting the student-university relationship in terms of a contract (my previous blogposting on these pages broaches the concept).  Count V expands upon this contractual relationship concept by casting Macky (and all other college students) as a consumer of educational services and Columbia as the business that purveys such services.  In such a setting, the Complaint calls out Columbia under New York’s consumer protection statutes for engaging in deceptive acts and practices, and for false advertising.

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The Prayer for Relief in the Complaint is noteworthy in that it asks the court not only to award Macky monetary damages and attorney fees, but also requests the court to issue an injunction against all the defendants prohibiting them from violating the relevant federal and New York State statutes, “and ordering Defendants to take all necessary, adequate, and appropriate remedial, corrective, and preventative measures including by, among other things: (i) disciplinary measures, including the termination of, deans, administrators, professors, and other employees responsible for antisemitic discrimination and abuse, whether because they engage in it or permit it; (ii) disciplinary measures, including suspension or expulsion, against students who engage in such conduct; (iii) reforming and/or eliminating Diversity, Equity, and Inclusion protocols that encourage and/or foster antisemitism; and (iv) adding required antisemitism training for the Columbia community members.”

The Complaint has thus been drafted so that there is more than money at stake in this litigation.

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Most cases settle before trial, and many that go to trial settle before verdict (the Complaint does include a demand for a jury trial).  As noted, it is premature at this time to predict how this litigation will proceed.  Several possible scenarios can nonetheless be contemplated.

As mentioned earlier, the Complaint names as defendants not only Columbia University, but also three of its employees.  The employees’ interests do not totally overlap those of the University, nor of one another, so there would be a conflict of interest for all of them to be represented by the same defense counsel.  On one hand, this can complicate reaching a complete settlement of the case before trial, but on the other hand, Macky’s attorneys can exploit the diverse interests of the defendants by settling with one or more, but not all, of the four defendants.

Moreover, Macky and her lawyers can insist upon the injunctive relief requested before consenting to a pre-trial case settlement for stipulation and court approval.

But there is pressure upon Columbia to resolve the case to avoid the risks not only of liability for itself, but of a new strategy that can be used against all American colleges and universities that tolerate attacks upon and discrimination against Jewish students on campus.

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