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NU Cut Ties From Boozy Jewish House, Not Discrimination: 7th Cir.

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By Mark Wilson, Esq. on November 10, 2014 6:41 AM

Illinois of course prohibits people under 21 from drinking alcohol. Except that it's permitted "in the performance of a religious ceremony or service." Students attending ostensibly religious functions (a.k.a. "parties") at the Tannenbaum Chabad house at Northwestern University did indeed consume alcohol there -- so much, in fact, that one student had to be hospitalized for excessive consumption.

A discrimination suit against the university arose after Chabad's advisor, Rabbi Klein, failed to make any changes to the house, resulting in the university "disaffiliating" itself from Chabad and barring Klein from contracting with a food company called Sodexo to provide rabbinic supervision over its kosher food.

A federal district court dismissed the case, and so too did the Seventh Circuit.

I Wouldn't Really Called That a Tradition

"As far as we've been able to determine, plying minors with hard liquor is not required by any Jewish religious observance," writes Judge Richard Posner. Love that guy.

After a district court granted summary judgment for the university, Klein appealed, though he dropped a discrimination claim under 42 USC Section 2000d, which prohibits exclusion from a program receiving federal funding due to race, color, or national origin. That left a claim under 42 USC Section 1981, which permits freedom of contract regardless of race.

Actually, it specifically says that every person in the United States has the same right to enter into contracts "as is enjoyed by white citizens." Huh? As Posner observes, "Most Jews are white, but section 1981 has been interpreted to provide a remedy to members of any racial or ethnic group." Klein claimed the university's motivation for disaffiliating Chabad was due to its hostility to that sect of Judaism (Posner notes that Klein couldn't have plausibly claimed it was hostility to Jews in general, "considering how many Jews there are in the university's student body, faculty, and administration.")

I'll Do Better Next Time, I Swear

Unfortunately, Section 1981 says nothing about religious affiliation. And not only that, but as you might have guessed, it doesn't appear that the university's motivation for disaffiliation was motivated by religion. It was motivated by excessive drinking. Klein thinks the university should give him another chance, as in, it should have told him to exercise more control of the alcohol at the house.

But Posner thinks Klein doesn't deserve a second chance -- because he had been warned before. "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."

Judge William Bauer concurred to acknowledge the "background and the various nuances of the religious groups discussed, or alluded to" in Posner's opinion, which were the product of extracurricular research not found in the record. Mazel tov?

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