Harvard’s Seven Fancy Lawyers Misspell Name of a Prominent Jewish Alumnus
University claims decentralization as a defense in antisemitism case
Harvard’s latest legal filing in a federal case seeks to prevent two current Harvard students from joining Alexander “Shabbos” Kestenbaum’s antisemitism lawsuit against the university.
It’s filed by seven lawyers working for Harvard from two law firms based in four cities: Felicia Ellsworth at WilmerHale in Boston; Seth Waxman, Bruce Berman, and Jeremy Brinster at WilmerHale in Washington; Mark Kirsch and Gina Merrill at King and Spalding in New York, and Zachary Fardon at King and Spalding in Chicago.
The April 3 filing twice misspells the name of Louis D. Brandeis—an 1877 graduate of Harvard Law School—as “Brandies.” Brandeis served on the U.S. Supreme Court from 1916 to 1939 and was leader of the Zionist movement in America from 1914 to 1921. Brandeis University in Waltham, Massachusetts is named after him, as is the Louis D. Brandeis Center for Human Rights Under Law, which is one of the groups that sued Harvard for discriminating against Jewish students.
Spelling sloppiness or microaggressions by large teams of pricey lawyers aside, the April 3 Harvard filing titled “Defendant’s Opposition to Plaintiff’s Motion for Leave to Join Additional Plaintiffs and File Third Amended Complaint” is newsworthy for another reason. It includes a novel argument that because the two current students attend Harvard Law School and Harvard Business School, they shouldn’t be allowed to join the lawsuit by Kestenbaum, who graduated in 2024 from the Harvard Divinity School.
“Mr. Kestenbaum, John Doe #1, and John Doe #2 each attend (or, in Mr. Kestenbaum’s case, attended) different schools at Harvard, each of which has a separate campus (none of which includes Harvard Yard), a distinct student body, different administrators, and its own set of policies and procedures that cover student conduct and discipline,” the seven Harvard lawyers argue.
This is comical. The case is captioned Kestenbaum v. President and Fellows of Harvard College, not Kestenbaum v. Harvard Divinity School. The lawyers’ client is the Harvard Corporation, not the Harvard Divinity School. The Harvard Law School website pitches prospective students to apply and attend on the grounds that “law students can tap into Harvard University’s extraordinary resources through joint degree programs, cross-registration, and a variety of social and cultural venues.” It also says, “Harvard Law School affords you access to the unparalleled resources of Harvard University, a global alumni network, an incomparable course catalog and library collection, and a renowned faculty engaged in teaching and research in dozens of disciplines.” Harvard seems to be trying to have it both ways—saying the law school is an integral part of the university when it is trying to convince students to pay money to attend, and saying it’s a “different” “distinct,” and “separate” school when it’s trying to talk a judge into barring a Jewish student from joining an anti-discrimination lawsuit.
As for the claim that Harvard Yard is not included in the campus of Harvard Divinity School, Harvard Law School, or Harvard Business School, that is sophistry. Memorial Church is in Harvard Yard and it is led by the Rev. Matthew Potts, who is Plummer Professor of Christian Morals in the Faculty of Divinity. Widener Library in Harvard Yard is part of the Harvard central administration, and its resources are available university-wide. The Business School, Law School, and Divinity School students all attend the university-wide commencement ceremonies in Harvard Yard. Divinity school, business school, and law school students live in Harvard Yard dormitories and serve as proctors to the first-year Harvard College students who also live in the Yard. And a Jewish law or divinity student might routinely walk through Harvard Yard from a meal or a religious service at Harvard Hillel or Harvard Chabad on the way to class. The anti-Israel protest movements operate as united fronts, featuring students, faculty, staff, and graduate students from all Harvard schools. Likewise, the Harvard Clerical and Technical Workers Union represents workers at the business, law, and divinity schools as a single bargaining unit. The endowments of the schools are jointly managed by the Harvard Management Corp.
It’s true that Harvard is highly decentralized compared to other universities. That’s been both a strength and, in the case of allowing antisemitism to fester, a weakness of Harvard. The idea that the decentralized structure should immunize Harvard from legal accountability for the antisemitism by preventing students from different schools from pursuing joint legal action is preposterous. To the extent that Harvard has failed to enforce consistent, university-wide antidiscrimination policies, that failure is the cause at the center of the litigation, not an excuse the university can use to bar the discriminated-against students from suing.
A March 27 executive order from President Trump, “addressing risks from WilmerHale,” says, “To prevent the transfer of taxpayer dollars to Federal contractors whose earnings subsidize, among other things, activities that are not aligned with American interests, including racial discrimination, Government contracting agencies shall, to the extent permissible by law, require Government contractors to disclose any business they do with WilmerHale and whether that business is related to the subject of the Government contract.”
WilmerHale lost the Harvard affirmative action in admissions case at the Supreme Court while racking up tens of millions in fees, for which Harvard was on the hook after its lawyers failed to provide timely notice to its insurance company, which would have been responsible for paying the bills. The same firm also prepped both Penn and Harvard for the disastrous congressional hearing before Chairman Virginia Foxx and Rep. Elise Stefanik. Ellsworth sat in the front row at that hearing, next to current Harvard president, then-provost, Alan Garber, and behind Claudine Gay. A WilmerHale partner, William Lee, was the senior fellow of the Harvard Corporation, and another two partners, Seth Waxman and Jamie Gorelick, were members of the Harvard Board of Overseers. Waxman, who is working on defending Harvard against the Jewish students and who also worked on the affirmative action in admissions case, is a former president of the Harvard Board of Overseers.
There’s some discussion over whether the Trump executive order, which WilmerHale is fighting in court rather than settling as other firms have done, would cause Harvard to drop the firm in the Kestenbaum case. Some sophisticated observers are hoping that doesn’t happen, because WilmerHale is doing such a bad job of defending the case that keeping them on as counsel increases the chances of a better outcome for the Jewish students.
In any event, the litigation is proceeding on a parallel track with the Trump administration’s review of $9 billion of federal spending on Harvard and its affiliated institutions. An April 3 letter to Harvard from Josh Gruenbaum, commissioner of the Federal Acquisition Service of the U.S. General Services Administration, along with the acting general counsels of the departments of health and human services and of education, says, “Harvard must make meaningful governance reforms to improve its organizational structure to foster clear lines of authority and accountability.” As with so much that the Trump administration is asking the universities to do, Harvard should have done that years ago.
Absent intense legal, congressional, and executive branch pressure, the forces of inertia and entropy at a well-endowed nearly 400-year-old institution like Harvard are so strong. The mediocrity of Harvard’s legal representation in the Kestenbaum case is a sign of that, and a gem of an example of why so many of the incumbents at Harvard view the Trump intervention as an assault rather than a welcome prod to long-overdue reforms. The “different administrators” and the “different schools” and most of all a lot of the professors don’t want the accountability, and they don’t want to be subject to the authority. Sure, decentralization is not without its advantages. Harvard leaders have typically preferred to offer financial incentives for cooperation rather than attempting a command-and-control top-down approach. But decentralization at Harvard as currently practiced is a kind of worst-of-both worlds system. People suffer from the burdens of the central bureaucracy without reaping gains from uniformly imposed high standards of excellence. And if you are a cancer researcher at Harvard Medical School or the Dana Farber Cancer Institute whose federal grants are now at risk because the divinity school let a bunch of Hamas sympathizers run rampant, Harvard’s laxity is now a liability. If you want to understand what ails Harvard in a nutshell, sure, stifling ideological conformity is part of it. But on a structural level, it’s hard to find a clearer summation of the problem at hand than the “each of which has a separate campus” argument made for Harvard by Felicia Ellsworth of WilmerHale.
Eric Adams, Independent: Whatever one’s view is of Mayor Adams and his leadership of New York, his decision to run for re-election as an independent is an encouraging sign for the increasing numbers of Americans who feel ill-served by both major political parties.
People will portray it as a personal choice by Adams who has unique circumstances because of a federal criminal case brought under Biden and dropped by Trump. But there are policy and ideological angles, too.
The Republicans are sliding toward becoming a pro-tariff, tax-the-rich (“Republicans Debate Hiking Top Tax Rate to 40% for Millionaires,” is a Bloomberg headline from yesterday afternoon) personality cult of Trump. The Democrats, meanwhile, also want to raise taxes on the rich and in addition to that are passionately devoted to preventing pro-Hamas foreigners from being deported from American college campuses. To the extent that there is space in the American center for pro-growth, pro-rule-of-law policies, parties and politicians, every deviation from the two-party duopoly bears close watching. Even if the independent efforts do not succeed, they could help to pull the Democrats and the Republicans back toward the sensible center. (In that vein,
has some advice for Democrats: “Stop talking about ICE. Stop talking about transgender issues. Stop talking about DOGE. Stop talking about taxes. Focus on one thing and one thing only: the pain Americans are about to feel at the cash register. Every ad, every press conference, every tweet, every post, every floor speech, every podcast should simply highlight the pain that real people are feeling because of Trump’s tariffs.”)Thank you: The Editors newsletter is proudly made in America. No tariff applies. Unlike Harvard, we don’t have a $50 billion endowment. We do ourselves also sometimes misspell words, but we are a small shop, not an expensive law firm. This newsletter is made possible only by the support of paying readers. For full access to all the content and to sustain our editorial independence, please become a paying subscriber. The price is less than 27 cents a day. Thanks to those who have already joined or who have recently renewed.
“Republicans Debate Hiking Top Tax Rate to 40% for Millionaires, is a Bloomberg headline from yesterday afternoon." Quoting a Bloomberg clickbait headline is an unconvincing way to persuade.