Court upholds dismissal of religious discrimination lawsuit against Northwestern in Chabad House disaffiliation
The Daily Northwestern/November 7, 2014
By Paige Leskin
A federal appeals court affirmed Thursday the dismissal of a federal lawsuit against Northwestern that alleged religious discrimination in the University’s decision to cut ties with Tannenbaum Chabad House in 2012.
In a ruling in the U.S. Court of Appeals, Circuit Judge Richard Posner said that Rabbi Dov Hillel Klein, who oversees all operations at the Chabad House, 2014 Orrington Ave., had exhausted all of his chances with the University to fix his improper behavior, which included serving excessive amounts of alcohol, including hard liquor, to underage students.
“He had gotten away for more than a quarter of a century with an irresponsible attitude toward excessive underage drinking that went on under his nose in the Chabad house, and seems to have thought that he could continue to do so, with impunity, indefinitely,” Posner wrote in his opinion. “He was warned repeatedly, but did not react. Had he stepped forward on his own initiative and promised to mend his ways, the Tannenbaum Chabad House might still be a Northwestern University affiliate.”
In the original lawsuit filed in September 2012, the Lubavitch-Chabad of Illinois, on behalf of Klein and Chabad House, claimed that anti-Semitism and religious discrimination against the Chabad sect motivated the University’s disaffiliation. They accused NU of treating Chabad differently than it does other student groups, including fraternities, that are commonly associated with heavy underage drinking.
However, Posner agreed with the December 2013 summary judgement from U.S. District Court Judge John Darrah, who said the University had a “legitimate, nondiscriminatory reason” to disaffiliate with Chabad House.
University spokesman Al Cubbage lauded the court’s upholding of the decision in a statement Friday. The serving of alcohol to underage students at the Chabad house was in violation of both University policy and state law and was a practice that NU had warned Klein about many times, Cubbage said.
The University has spent more than a decade fielding complaints and handling incidents in which underaged students consumed alcohol at the Chabad house, Posner said. In 2001, a student had to be hospitalized due to excessive alcohol consumption at a party at the religious center, according to the ruling.
“As far as we’ve been able to determine, plying minors with hard liquor is not required by any Jewish religious observance,” Posner said.
According to the ruling, Klein continued to provide alcohol, even after apologizing to NU for doing so and noted that Illinois law allowed for those under the age of 21 to drink “in the performance of a religious ceremony or service.”
After an NU graduate’s parent, who was also a rabbi, complained to administration about the drinking practices, the University conducted an investigation into the Chabad house, according to the ruling. As a result of what was found, NU cut its ties with the Chabad house as long as Klein remained its head.
Tamara de Silva, one of the attorneys who represented Klein and Chabad House in the original lawsuit, told The Daily on Friday that Posner’s decision is “plainly wrong.” He cites Wikipedia in order to define certain Jewish terms to make a “pretty scathing” point, she said.
“This is a religious ceremony that was recognized even during Prohibition,” de Silva said. “Judge Posner infers things outside of the four corners of the record to reach his opinion.”
Although de Silva did not provide counsel in the appeal, she said she hopes Klein will appeal Posner’s decision and that she would love to take part in it.
Jonathan Lubin, who acted as co-counsel with de Silva on the original suit, said Posner made conclusions that were not supported by any of the evidence presented.
“If you look at Judge Darrah’s decision … it was very well reasoned,” Lubin said. “In contrast, if you look at the appellate decision, there was a lot of stuff in the appellate decision that was outside of the record entirely. That’s sort of where the real frustration probably is.”
Klein can ask for another hearing of the case in front of the full panel of appeal judges, de Silva said. After that, Klein could appeal the case up to the U.S. Supreme Court.
Klein declined to comment Friday and referred to Rabbi Daniel Moscowitz, the director of Lubavitch-Chabad of Illinois, to speak on the litigation.
Moscowitz said he was disappointed with the decision and was considering the further steps he should take.
“Rabbi Klein followed Northwestern’s rules and despite that was singled out by the University,” Moscowitz said. “Rabbi Klein remains steadfastly committed to serving the students and faculty of Northwestern University, as he has for close to three decades.”
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