Updated Nov. 10, 6:03 p.m. with statements from Attorney Jonathan Lubin and Rabbi Meir Moscowitz.
A U.S. Court of Appeals for the Seventh Circuit decided on Thursday to uphold the dismissal of the Tannenbaum Chabad House’s lawsuit against Northwestern.
The Chabad House, Rabbi Dov Hillel Klein and the Lubavitch-Chabad of Illinois sued the University in September 2012 after the university disaffiliated itself from the religious organization following multiple reports of underage students being served alcohol. The rabbi and Chabad’s case was dismissed in December 2013.
The University was “pleased” with the upholding of the dismissal of the case, said Alan Cubbage, Northwestern's vice president for university relations, in a statement Friday.
In the appeal, Klein said the university was “motivated by antisemitism,” specifically against the Chabad sect of Judaism, and therefore was in violation of federal and Illinois laws against discrimination, according to court documents.
Klein denied to comment for this story. On his behalf, Rabbi Meir Moscowitz of the Lubavitch Chabad of Illinois said in an email, "We are very dismayed by the decision and are considering further steps. Rabbi Klein followed Northwestern's rules and despite that was singled out by the university."
However, Circuit Judge Richard Posner ruled in his deciding opinion on Thursday that there was no evidence that the university had discriminated against the Chabad house because of their religious affiliation, as well as no basis in the laws the appellants cited that include the illegality of religious discrimination.
“The only discrimination... alleged is that the university staff did not take the same measures against student organizations that it did against the Chabad house, even though, as is well known, excessive (and underage) drinking is common in such organizations, notably fraternities,” said Posner in his deciding opinion. “But unlike Chabad houses, fraternities are not managed by adults and are components of the university rather than separate entities merely affiliated with it.”
The Chabad organization and Klein also argued in their defense that alcohol can legally be served to minors if it “is in the performance of a religious ceremony or service.” But Posner said that he could not find an instance where drinking hard liquor was required by any Jewish practice.
"The Seventh Circuit's opinion almost consciously avoided the record and the facts," said Jonathan Lubin, one of the attorneys who represented the Chabad House in the original lawsuit, in an email. "In reviewing a ruling on a Motion for Summary Judgment, a court is supposed to resolve all disputes of fact in favor of the Plaintiff. The decision simply disregards the actual record before the Court, and instead points to Wikipedia articles and YouTube videos to support its wild guesses as to what happened at the Chabad House."
The university’s complicated history with the Chabad House was detailed in the court documents, which said the university first heard about underage drinking at the Chabad House in 2001 after a student vomited and needed to be hospitalized after a party there. The university warned Klein, but in 2005, at a party for the rabbi’s son’s Bar Mitzvah in a university dining hall, there was “not only wine, but also hard liquor, mainly vodka and scotch” served to underage attendees.
In following years, according to court documents, the university conducted an investigation and continued to see hard liquor being served to underage students. They asked that Rabbi Klein be replaced or they would disaffiliate, and when Klein remained, the university made true on their promise.
One consequence of disaffiliation was the termination of Klein's contract with Sodexo as the supervisor of the kosher food in the dining halls.
Klein argued that the university should have "told him to exercise closer supervision over the alcohol consumption at the house, as a condition for retaining the affiliation," according to Posner's court statement.
"He wants a second chance," Posner said, but said that he was given multiple chances. Posner added, "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."