When Courts Minimize Terrorism, Jewish Students Pay the Price

I practiced law in Rhode Island and Massachusetts at the time of the Boston Marathon bombing, and argued cases before the First Circuit. When I read opinions from my former jurisdiction, I pay close attention not only to legal outcomes but also to the judges and how they frame the underlying events.

I could not help but notice that the judge who authored the recent First Circuit opinion in StandWithUs v. MIT was among the panel of judges criticized by victims and families of the Boston Marathon bombing for failing to fully grasp the depth of their trauma when the court vacated the bomber’s death sentence in 2020 (later overturned by the Supreme Court). At first, that history seemed irrelevant. As I read the opinion, it became painfully clear that it was not.

Minimizing Terrorism by Neutralizing It

Judge Kayatta describes the case as “emerging from extraordinary violence in the Middle East.” That phrasing is striking for its neutrality. October 7 was not merely “violence.” It was a mass terrorist assault by Hamas, marked by the intentional murder of innocent civilians, torture, sexual violence, hostage-taking, and atrocities committed precisely because the victims were Jews. The attack was on our Jewish homeland and the worst massacre of Jews since the Holocaust. By neutralizing the event linguistically, the court strips it of its moral and legal gravity.

In the aftermath of October 7, Jewish students were not responding to distant geopolitical developments; they were grappling with profound grief, fear, and collective trauma as their homeland was attacked and as family and friends were killed, tortured, and taken hostage. Against that backdrop, they encountered peers on their college campuses who celebrated Hamas’s violence, justified the attacks, chanted slogans associated with terror and the eradication of the Jewish people, and directly targeted them, even at their vigil on October 10 for the murdered victims and hostages.

The court panel fails to recognize the magnitude of the October 7 terrorist attacks, the trauma inflicted on Jews worldwide, and how that trauma reverberates when violence against Jews is celebrated, justified, and weaponized against them.

The court also minimizes the antisemitic conduct that followed at MIT, characterizing it as benign “student expression” by “students opposed to Israel,” merely “engaged in speech on a matter of public concern—the conflict in Gaza.” That framing ignores the context, dismisses the trauma of Jewish students, and mischaracterizes targeted harassment as innocuous political debate.

The same trivialization appears in the court’s characterization of the MIT anti-Israel encampment. Students unilaterally seized a central part of campus, defied the university president’s direct orders, violently breached and knocked down barricades, blocked entrances and exits to campus facilities, obstructed the road on Massachusetts Avenue during rush hour, and ignored police directives. The university president deemed the environment unsafe and the area was described as highly unstable. Yet the court refers to the encampment as a “campsite” —conjuring images of a friendly, communal gathering in nature with campfires and s’mores rather than the intimidating, unsafe, and hostile academic environment Jewish students and faculty experienced.

This rhetorical softening matters. Once conduct is framed as law-abiding political expression, administrative inaction by is more apt to be deemed reasonable. The court then concludes—almost inevitably—that the conduct does not rise to actionable harassment under Title VI and that MIT was not deliberately indifferent to the antisemitic harassment of Jewish students. But that conclusion rests on foundational errors, ignoring the context and impact of the conduct. It is also starkly at odds with the findings of the the House Committee on Education and the Workforce, which documented “stunning failures of leadership” at MIT and noted that at the end of October 2024, MIT had not suspended a single student for antisemitic conduct related to protests or encampments, despite widespread violations and a weeks-long encampment that its own president deemed unsafe.

The Court’s Blind Spot: Failure to Recognize Contemporary Antisemitism

The First Circuit acknowledged that plaintiffs are “entitled to their view equating anti-Zionism with antisemitism,” but dismissed it as lacking consensus, concluding that protests sympathetic to Palestinian causes were “not, by and large, antisemitic.”

This blanket statement is contradicted by the fact that the most widely-recognized definition of antisemitism in the world, the IHRA Definition, includes widely-accepted examples that effectively demonstrate how antizionism and antisemitism are intertwined based on the context in which the behavior occurs.

In addition, there is overwhelming evidence that shows that since October 7, antizionism frequently functions as a vector for antisemitism on college campuses. For example, data from the Anti-Defamation League shows that Jewish students experienced and reported unprecedented levels of antisemitism, often stemming from their real or perceived connections to Israel. Similarly, the congressional committee found that since October 7, Jewish students are routinely targeted “on the purported basis of being Zionists,” with discriminatory effects on the overwhelming majority of Jews.

University antisemitism task forces echoed these findings. Columbia’s task force concluded that much antizionist rhetoric “hews far more closely to antisemitism” than to legitimate criticism of Israeli policy, documenting Nazi comparisons, blood libel imagery, and tropes about Jewish power. Stanford’s subcommittee documented open support for terrorist organizations, classic antisemitic myths, and harassment based on Jewish and Israeli identity—not political beliefs.

Contrary to the panel’s bare assertion, based on an unsubstantiated opinion, there is significant support for the inextricable link between antizionism and antisemitism:the widely-adopted IHRA Definition, which takes antizionist conduct into account; the use of the IHRA Definition by the U.S. Department of Education’s Office of Civil Rights; comparative research data (pre and post October 7); investigatory reports from Congress and university appointed antisemitism taskforces; and legal scholarship. All establish and support this connection.

This case underscores the need for courts to use the tools at their disposal to understand contemporary forms of antisemitism, most importantly, the IHRA Definition of Antisemitism and academic scholarship in the emerging field of Jewish Legal Studies. In addition, courts should consider how terrorism reverberates beyond the moment of attack—how celebrating or justifying mass violence against a group inflicts real psychological harm. Just as Brown v. Board of Education relied on social science to illuminate the harms of segregation, cases related to antisemitism should include evidence-based understandings of terrorism and trauma.

Without that understanding, courts will continue to mistake intimidation for debate, harassment for activism, and trauma for oversensitivity.

And Jewish students will continue to pay the price.