Chabad northwestern article · MD
By R Tamara de Silva | De Silva Law Offices, LLC
There are cases that you take not because they are easy, but because the question they raise is genuinely important, and because the gap they expose in the law deserves to be illuminated even when the court is not yet ready to close it. Lubavitch-Chabad of Illinois v. Northwestern University, No. 12-cv-07571 (N.D. Ill.), was that kind of case.
In the fall of 2012, Northwestern University disaffiliated from the Tannenbaum Chabad House on its Evanston campus, ending a relationship that Rabbi Dov Hillel Klein had maintained for nearly thirty years. The stated reason was underage drinking. The suit we filed alongside co-counsel Jonathan Lubin on behalf of Rabbi Klein and Lubavitch-Chabad of Illinois alleged that the stated reason was pretextual: that Northwestern had selectively targeted a distinctive branch of Chassidic Judaism while leaving comparable violations in the Greek system unaddressed. The case raised a question that federal civil rights law answers poorly, if at all: what legal remedy exists when a private university discriminates not against Jews as an ethnic group, but against a particular Jewish religious sect?
The Factual Background
Northwestern severed ties with Chabad House in September 2012 after a parent (himself a rabbi, and reportedly hostile to the Chabad movement) complained to university administration about alcohol consumption at the Tannenbaum house. A university investigation followed, and Rabbi Klein was ultimately told to resign or face disaffiliation. He declined to resign. Northwestern then disaffiliated Chabad House and barred Klein from contracting with Sodexo, the university's kosher food services vendor, a measure that effectively severed his ability to provide basic religious services to Jewish students on campus.
The alcohol-related conduct at issue included the service of Kiddush wine and, on at least some occasions, hard liquor to students under the age of twenty-one. Rabbi Klein acknowledged the practice and characterized it as religious observance. Northwestern characterized it as a repeated violation of university policy that had persisted, despite warnings, for decades.
At the time of the disaffiliation, fraternities and sororities on Northwestern's campus had documented histories of underage drinking violations. The university had not disaffiliated from any of them.
The Statutory Framework and Its Limits
The complaint invoked two principal statutory grounds: 42 U.S.C. § 1981, which guarantees all persons the same right to make and enforce contracts as is enjoyed by white citizens, and 42 U.S.C. § 2000d, the operative provision of Title VI, which prohibits discrimination on the basis of race, color, or national origin by recipients of federal financial assistance.
Neither statute, on its face, says anything about religion. That gap is not incidental; it is structural, and it reflects the bifurcated architecture of federal civil rights law.
Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in employment. Title VI does not extend to religion. The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious institutions from discriminatory land use regulations by government entities, but it does not govern private universities. The Religious Freedom Restoration Act (RFRA) prohibits the federal government, not private actors, from substantially burdening religious exercise without a compelling justification. The First Amendment's Free Exercise Clause runs only against state action.
That architecture leaves an open field. A private university that systematically targets a religious denomination for adverse treatment may face no federal statutory remedy at all, provided it avoids the ethnic or racial dimensions of the group's identity.
The § 1981 Theory: Ancestry, Ethnicity, and the Limits of Shaare Tefila
The § 1981 argument was the more creative of our theories. Section 1981 has been interpreted, following the Supreme Court's decisions in St. Francis College v. Al-Khazraji and Shaare Tefila Congregation v. Cobb, to protect identifiable groups defined by ancestry or ethnic characteristics, not merely the racial categories that the statute's nineteenth-century drafters had in mind. Under Shaare Tefila, Jewish Americans can invoke § 1981 when subjected to discrimination because of their Jewish ancestry.
The argument we advanced was that the university's animus was directed not at Jews generally (a claim that would have been implausible given Northwestern's faculty, student body, and administration) but specifically at the Chabad sect. Chabad-Lubavitch is a distinct Chassidic movement with its own history, customs, dress, liturgical practices, and communal identity. The question was whether targeted hostility to Chabad, as opposed to Jews broadly, could support a § 1981 claim grounded in ethnic or ancestral characteristics.
Judge Posner, writing for the Seventh Circuit in affirming dismissal, concluded that it could not. His reasoning turned on the distinction between ethnic identity and religious identity. Even accepting that hostility to Chabad animated Northwestern's decision, § 1981 does not protect against discrimination based on religious disagreement between sects. The statute's protection, under Shaare Tefila, extends to ancestral and ethnic characteristics, not to the theological commitments that distinguish one Jewish movement from another.
That reasoning is not implausible. But it rests on a distinction that, at the margins, is less clean than the opinion suggests. Chabad-Lubavitch is not merely a theological school; it is a distinct community with its own genealogy, communal history, and cultural practices stretching back to eighteenth-century Belarus. The line between "ethnic characteristic" and "religious identity" is not always the bright one that the § 1981 jurisprudence assumes.
Selective Enforcement: Apples, Oranges, and the Greek System
Perhaps the strongest argument in the case, and the one that I continue to believe had genuine force, was the selective enforcement theory. At its core, the accusation was antisemitism, not merely disparate treatment in the abstract. The claim was that Northwestern had identified a Jewish religious institution as the one organization on campus to which it would apply a policy it demonstrably declined to enforce against comparable secular groups. That pattern of selective application of neutral rules against Jewish institutions has a long and documented history. It does not require a slur or an overt statement of animus. It requires only that the institution use a facially legitimate justification as a vehicle for targeting a group it has chosen to single out.
The factual predicate was straightforward: Northwestern had documented evidence of repeated underage drinking violations in its Greek organizations and had taken no comparable action against any of them. If the university was genuinely motivated by concern for underage drinking, why was a Jewish religious organization the first and only entity to face disaffiliation?
District Judge Darrah characterized the comparison as "apples to oranges," and the Seventh Circuit adopted that framing. The reasoning was that fraternities and sororities are internal university organizations, components of Northwestern itself, while Chabad House was a separately incorporated external entity that was merely affiliated with the university. Because the institutional relationships were different, the argument went, unequal treatment was not probative of discriminatory intent.
That response is analytically defensible but unsatisfying. The university's leverage over an affiliated religious organization is, if anything, greater than its leverage over an internal fraternity chapter, because the affiliated organization depends on the university for recognition, access to students, and contracting relationships. Northwestern was not comparing like with like; it was applying a harsher standard where its power was greatest and a more permissive one where it faced more institutional friction.
The Religious Ceremony Exception and Illinois Alcohol Law
One of the more nuanced dimensions of the case involved Illinois law itself. The Liquor Control Act, 235 ILCS 5/6-16, contains an explicit exception permitting persons under the age of twenty-one to consume alcohol "in the performance of a religious ceremony or service." That exception reflects a considered legislative judgment (recognized even during Prohibition) that religious observance occupies a different legal category than recreational drinking.
Kiddush, the ritual sanctification recited over wine on the Sabbath and Jewish holidays, is not incidental to Jewish practice. It is obligatory under halakha. The same is true of the four cups of wine consumed at a Passover Seder. The argument that providing Kiddush wine to students constituted a religious ceremony within the meaning of the statute was legally sound and historically grounded.
Judge Posner dismissed it in a line that became the most-quoted passage from the opinion: "As far as we've been able to determine, plying minors with hard liquor is not required by any Jewish religious observance."
That sentence does real work for his analysis, but it conflates two distinct practices. The service of Kiddush wine under rabbinic supervision during Shabbat or holiday observance is categorically different from the informal provision of hard liquor at social gatherings. The record appears to have included evidence of both. The religious ceremony exception was a genuinely applicable defense to the former, even if it did not reach the latter. The opinion did not engage carefully with that distinction.
The methodological footnote to this section of the opinion is also worth noting. Judge Bauer, concurring, acknowledged that Posner's analysis of Jewish religious practice relied on research conducted outside the record, including, as widely reported, Wikipedia. Whatever one thinks of the outcome, using extrajudicial sources to characterize the religious requirements of a minority faith, without an opportunity for the parties to respond, is a troubling practice.
What the Case Leaves Unresolved
The litigation ultimately produced a clear ruling on § 1981's textual limits, and a somewhat less satisfying analysis of everything else. But the question that drove the case remains open: what remedy does federal law provide when a private university, beholden to no constitutional constraint, discriminates against a religious organization not because of the ethnicity of its members but because of the particular sect they practice?
The answer, under current federal law, appears to be: very little. RFRA does not bind private actors. RLUIPA addresses land use and prisons. Title VI does not extend to religion. Title IX does not apply. Section 1981 protects ancestry, not creed.
That gap is not hypothetical. Campuses have become contested terrain for religious communities, and the legal protections available to religious organizations that are not also ethnic minorities are materially thinner than those available under other civil rights frameworks. The absence of a private cause of action for religious discrimination in educational programs receiving federal funding (something that Title VI provides for race and Title IX provides for sex) is an anomaly that Congress has not addressed.
State law may, in some instances, provide a broader remedy. The Illinois Human Rights Act prohibits discrimination in public accommodations on the basis of religion. Whether a private university constitutes a place of public accommodation under Illinois law, and whether the disaffiliation of an external organization falls within that prohibition, presents questions that were not fully developed in this litigation.
A Note on Advocacy
I have been asked, since the Seventh Circuit's opinion issued, whether the case was worth bringing. The answer is unambiguously yes.
The question of whether a private university can selectively target a religious minority organization using a policy it does not apply to comparable secular groups is not a frivolous one. The courts answered it at the level of § 1981's text. They did not answer it at the level of statutory policy, constitutional principle, or basic institutional equity. Cases that expose genuine gaps in the law serve a function even when they do not prevail; they document the gap, they force the institution to justify its conduct on the record, and they establish the factual predicate for future legislative or judicial development.
Thirty years of service to a campus Jewish community is not an insignificant thing to extinguish. Rabbi Klein's ministry at Northwestern preceded the current administration, the current general counsel, and the current generation of students. The question of whether that relationship could be ended selectively, for reasons that had more to do with the identity of the organization than with the conduct cited, deserved a more careful answer than the courts ultimately provided.
De Silva Law Offices represents clients in federal civil rights litigation, religious freedom matters, and First Amendment disputes often pro bono. For inquiries, contact tamara@desilvalawoffices.com or call 312-810-8100.