Lubavitch-Chabad of Ill., Inc. v. Northwestern Univ., No. 14-1055 (7th Cir. Nov. 6, 2014).
The Chabad organization—a sect of Judaism—has a house near the Northwestern campus. The Chabad house’s leader, Rabbi Dov Hillel Klein, had a contract with a company named Sodexo, which prepared food for Northwestern students. Klein agreed to supervise Sodexo’s kosher food preparation, a service for which Sodexo paid Klein. Northwestern, in turn, had a contract with Sodexo, and it reimbursed Sodexo for the payments it made to Klein.
Now, the Chabad house hosted a number of events where alcohol was served to underaged students. “There is evidence,” says Judge Posner pointedly, that Rabbi Klein “was himself intoxicated at some of these events, though he denies that.” After a complaint from a non-Chabad rabbi—a rabbi that apparently was hostile to Rabbi Klein’s religious views—Northwestern terminated its official recognition of the Chabad house in 2012.
This had serious consequences: it meant that the Chabad house no longer had access to Northwestern facilities and services. Which, in turn, meant that Klein’s contract with Sodexo couldn’t be renewed.
Klein and the Chabad house sued Northwestern under 42 U.S.C. § 1981, a law first enacted during Reconstruction. It provides that all persons “shall have the same right … to make and enforce contracts … as is enjoyed by white citizens.” That law has been interpreted to outlaw ethnic discrimination, but here there’s no allegation of discrimination against ethnic Jews. Instead, it seems, Klein and the Chabad house claim Northwestern terminated its official recognition of the Chabad house based on religious hostility to Chabad beliefs. In support of this claim they point to the complaint lodged against Klein by the non-Chabad rabbi. But § 1981 doesn’t reach religious discrimination (or at least that’s how I read Judge Posner’s impressionistic opinion)—and anyway, says the Seventh Circuit, Northwestern’s “de-recognition” of the Chabad house was motivated by underaged drinking, not by doctrinal disputes.
Judge Posner’s opinion is larded with summaries of Jewish religious doctrine and piquant descriptions of Rabbi Klein—the latter gleaned, apparently, from Google searches. Judge Bauer concurs in the opinion, noting that much of its material is “not taken from the record of the case but [is] both enlightening and, I confess, entertaining.” And since the outside-the-record material has no effect on the result, he concurs. This is not the first time Judge Posner’s writing has prompted an editorial comment from Judge Bauer.