Published on: June 3, 2026
An ATIXA Tip of the Week by Dan Fotoples, J.D., M.A.
Gartenberg v. Cooper Union became one of the most closely watched campus antisemitism cases in the country after a federal court permitted the students’ Title VI deliberate indifference claims to proceed in February 2025. And now, after The Cooper Union for the Advancement of Science and Art agreed to a resolution of all claims in the case, practitioners should consider it a valuable case study to explore how Title VI protections interact with First Amendment rights to free expression.
The case arose from the now widely publicized October 2023 incident at Cooper Union in New York City, where Jewish students sheltered inside a campus library while pro-Palestinian demonstrators banged on doors and windows outside, shouted slogans, and demanded entry. The students alleged Cooper Union failed to respond adequately to escalating antisemitic harassment and intimidation on campus, including but not limited to the library incident.
Cooper Union asked the court to dismiss the lawsuit. The court declined to do so. Instead, the court provided an in-depth analysis of the legal boundary between protected political expression and actionable discriminatory harassment within the context of higher education.
The First Amendment, Title VI, and Private Institutions
As a threshold issue, the court had to determine whether Cooper Union being a private institution would influence its analysis of First Amendment protections, given that private institutions typically have more leeway when regulating what would otherwise be protected speech at a public institution. The students argued that since Cooper Union was private, the First Amendment did not apply, and therefore Cooper Union was responsible for responding to and addressing all the reported behavior under Title VI, not just behavior that would fall outside First Amendment protections.
The court rejected the students’ argument. The court reasoned that such an argument would mean that private schools would have different, and far more extensive, obligations under Title VI than public institutions would, and the court was unwilling to create such a rule.
The court’s refusal to set different standards for private institutions and public institutions meant that the analysis below is relevant for both public and private institutions.
The Bright Line Between Protected Speech and Actionable Harassment
The students reported several incidents in their complaint, all of which the students argued Cooper Union failed to stop, prevent, and remedy. (Bold text for emphasis is explained below):
- Jewish student hung up posters; they were vandalized and/or torn down
- Large signs were hung up on a building that characterized Jews as settlers living in Palestine and described the October 7 attacks as a reaction or counterattack
- Students staged a walkout, chanting slogans; they stormed a campus building
- Pro-Palestinian graffiti appeared on the exterior of a campus building
- A bathroom stall was vandalized with pro-Palestinian slogans and references to Mein Kampf
- Flyers posted around campus celebrated the 36th anniversary of the First Intifada
- The Muslim Student Association released a statement questioning whether the Jewish students being trapped in the library was a “false narrative”
- The Black Student Union put out a statement of solidarity with the Palestinian struggle
- A school-sanctioned art display referenced colonialism and Palestine
- Required attendance at a talk of an anti-Israel activist for a core Humanities course
The court’s task was to identify which of the reported incidents would fall within the protections of the First Amendment and which of the reported incidents could be actionable harassment or discrimination under Title VI: “just as federal anti-discrimination law must provide some breathing space for contentious political expression under the First Amendment, the Constitution must tolerate the regulation of at least some offensive speech if the Civil Rights Act is to achieve its promise.”
The court determined that matters of public concern, like political speech, directed toward the college community, through generally accepted means, will typically be protected and not constitute unlawful harassment. As a result, the court explicitly refused to treat chants, flyers, speeches, protest art, and student newspaper articles (bolded above) as actionable harassment merely because Jewish students experienced them as hostile or antisemitic. Such actions were not targeted toward one person or group, but rather toward the college community, and were communicated through generally accepted means in the college environment. Deference for academic freedom also played a role in the court’s analysis regarding the reported incidents that occurred within the curricular program.
That said, the court held that although several of the reported incidents may be protected speech, those incidents are not entirely irrelevant to determining whether actionable harassment occurred. The court held that protected speech may be relevant to assessing the motive or intent undergirding unprotected speech, which is an important element of the students’ Title VI claim. So, in other words, the protected speech may still provide background or context to understand the motive or intent behind unprotected speech. This may call to mind the “totality of the circumstances” concept for some readers experienced in Title VI and Title IX compliance.
Next, the court determined that the other incidents (not bolded, above) were not protected speech because of their targeted nature and because those messages were delivered outside the generally accepted means of communicating political speech on a college campus. Therefore, those incidents are actionable harassment, and Cooper Union should have responded in a manner that was not deliberately indifferent. The court determined that there was a material question as to whether Cooper Union responded with deliberate indifference because the students argued Cooper Union failed to enforce its policies regarding time, place, and manner restrictions for protest and political speech, failed to support students targeted by harassment, and failed to implement anti-discrimination procedures. In particular, the court was concerned about Cooper Union’s response to the library incident, in which demonstrators pushed past security, occupied parts of the building, surrounded the library, pounded on glass doors and windows, shouted demands to be let in, and directed chants toward Jewish students sheltering inside. Administrators allegedly failed to intervene despite police being available nearby and suggested to the Jewish students that they should hide upstairs or leave through a back door, prompting the court to point out that “these events took place in 2023, not 1943.”
As a result, the court denied Cooper Union’s motion to dismiss, which in turn led to the settlement between the two sides.
The primary takeaway from the court’s analysis is that institutions cannot discipline speech merely because it generates discomfort, outrage, or political pressure. But institutions must act when conduct escalates beyond protected speech and into actionable harassment. Title VI exposure does not come from student speech itself but rather from failures in institutional responses. Cooper Union was not being sued simply because students engaged in pro-Palestinian activism. The legal exposure arose because the institution allegedly failed to investigate adequately, enforce policies consistently, or discipline misconduct, and allowed vandalism and intimidation to continue unchecked.
The Settlement Signals Where Title VI Compliance is Headed
The settlement includes several elements that reflect terms we’ve seen in recent Title VI OCR agreements and could signal where Title VI compliance and enforcement are headed. Cooper Union agreed to substantial reforms, including:
- Creation of a Title VI Coordinator position
- Expanded antisemitism and anti-discrimination training
- Revised protest and posting policies
- Restrictions on masking during demonstrations
- A commitment to prompt and thorough responses to reports of harassment and discrimination
Notably, the institution did not admit wrongdoing. But the settlement reflects a growing national trend: institutions increasingly recognize that students, courts, OCR, and state legislators now expect far more robust Title VI infrastructure than campuses historically have maintained.
What Practitioners Should Be Doing Now
Institutions should revisit protest and demonstration protocols, access control procedures, emergency response coordination, posting and vandalism policies, bias response systems, Title VI reporting structures, disciplinary consistency, and documentation practices. While this ruling does not mean that private colleges are held to First Amendment standards, it does mean courts in NY likely won’t police speech on private college campuses that is protected by the First Amendment, or expect the colleges to do so. We would not be surprised to see courts in other jurisdictions apply a similar analysis.
As a result, both public and private institutions need clear internal frameworks for distinguishing protected political speech from targeted discriminatory conduct. They can’t improvise that analysis in the middle of a crisis.
Practitioners should also resist false binaries. The court’s opinion rejects both extremes: the idea that all anti-Israel speech is automatically antisemitic, and the idea that all conduct occurring during political protest is protected from institutional response. Instead, the opinion embraces a harder but more legally sustainable reality: context matters. And increasingly, courts expect institutions to navigate that complexity with precision, consistency, and courage.
Cooper Union may become one of the defining Title VI campus cases of the post-October 7 era. Practitioners would be wise to treat it as an early signal of where Title VI enforcement is headed, not as an outlier.
Need expert Title VI compliance guidance? Contact inquiry@tngconsulting.com.