Jewish Alumnus Sues University of Pennsylvania Over 'Water Buffalo' Incident

Magazine article

By: Robert Leiter

Date: April 19, 1996

Source: J.—The Jewish News Weekly of Northern California

About the Author: Robert Leiter is the Literary Editor of the Jewish Exponent, a weekly newspaper based in Philadelphia, Pennsylvania. He is widely published on topics related to Jewish life in the United States.

INTRODUCTION

The right to free speech is among the most cherished individual liberties. The freedom to speak without fear of punishment is a fundamental privilege protected under international law. The opening paragraph of the U.S. Bill of Rights explicitly prohibits any federal law restricting individual freedom of speech, and most other nations offer similar protections.

While U.S. law guarantees freedom of speech, it also provides for a balance between the rights of individuals, so that one citizen's rights do not extend so far as to encroach on the rights of another. In practical terms, this means that one's free speech rights may be limited if exercising those rights would infringe on the rights of another. One well-known example of such a scenario involves a movie-goer who falsely yells "Fire" in a crowded theater, knowing that this will create panic and potential injury to others. In such a case, the man's right to speech is limited by the other patrons' right to safety.

Individual free speech is sometimes legally limited by a higher need. National security concerns frequently dictate limits on how classified information may be used. Threats against the life or safety of the U.S. president are prohibited by law and punishable by up to five years in prison. False speech, such as offering untrue testimony in a legal proceeding or providing false financial data for a publicly traded corporation, is also prohibited and punishable by law.

Other specific types of speech are outlawed in various regions of the world. Ten countries in Europe prohibit Holocaust denial, the assertion that the German extermination of Jews during World War II never occurred. Canadians can be jailed for up to fourteen years for promoting genocide or hatred against any specifically identifiable group, while Icelanders can be jailed for two years simply for insulting or publicly ridiculing a person because of his nationality, religion, or sexual orientation. The prohibition of such hate speech is based on the belief that when used repeatedly, such words can intimidate or threaten the safety of others. Racial and gender slurs are two examples of typical hate speech.

PRIMARY SOURCE

PHILADELPHIA (JTA)— Eden Jacobowitz, whose late night cry of "water buffalo" turned the second half of his freshman year at the University of Pennsylvania into a "politically correct" nightmare, is suing his alma mater for damages, both mental and physical.

According to his attorney, Edward Rubenstone, the complaint was filed in the civil court division of Philadelphia's Common Pleas Court on Feb. 13. Jacobowitz is seeking damages "in excess of $50,000, plus interest and costs of suit, plus punitive damages."

The charges against Penn include gross negligence, breach of contract, reckless or intentional infliction of emotional distress, invasion of privacy and defamation.

The lawsuit stems from an incident that began just before midnight on Jan. 13, 1993, when Jacobowitz was in his dorm room working on an English paper.

Several black sorority women were making noise in front of the dorm. Jacobowitz remembers yelling, "Shut up, you water buffalo."

When the women hollered back that they were looking for a party, he added, "If you're looking for a party, there's a zoo a mile from here."

The sorority members, incensed by the yelling, called the campus police.

When the police asked Jacobowitz if he knew the race of the women, he said yes, but that it had no relevance to what he had shouted.

Some of the sorority women said that Jacobowitz had yelled "black water buffalo," but he insisted he had never mentioned race or color.

An Israeli-born Orthodox Jew from Long Island, N.Y., Jacobowitz explained at the time of the original case that his use of the term "water buffalo" came from the Hebrew word "behema," which can mean "water buffalo" but has often been used by Hebrew speakers as a mild rebuff when someone commits a thoughtless act.

Robin Read, who was then with the university's Judicial Inquiry Office, decided, however, that the water buffalo reference was racist.

In March 1993, she told Jacobowitz that no further action would be taken if he would apologize to the women and admit that he harassed them racially; if he would lead a sensitivity seminar on race in his dormitory; and if he would agree to have the incident recorded in his permanent transcript.

When Jacobowitz refused, Read told him he would have to attend a judicial inquiry.

The hearing took place on May 14, 1993. Three days later, the university published the tribunal's findings denying Jacobowitz's request for a dismissal of charges, and postponed a trial until the fall.

Almost immediately, the sorority women called a news conference and withdrew all charges, saying that undue publicity had deprived them of a fair hearing.

As far as the university was concerned, the case was officially closed.

But, after Jacobowitz graduated, he decided to see if he had a case and contacted Rubenstone.

"We charge breach of contract," Jacobowitz said in an interview last week, "because when you decide to go to a school, you basically sign an agreement that you'll abide by the rules and the school will treat you fairly and justly according to their standards.

"But the school violated their own policies by continuing the case on and on when it was clear that the charges had no merit."

Jacobowitz, the complaint says, is seeking damages because the prosecution of the case "impaired his academic career." He had to take incompletes in two of his second-semester freshman courses, and the ongoing case caused him to feel "fear, alienation and depression" while on campus.

He also suffered from a respiratory condition that began in the spring of his freshman year and persisted for at least six months.

"I definitely want damages," Jacobowitz said. "I think they owe it to me. Because when you enter an Ivy League school and are paying Ivy League prices and you get the door slammed in your face, then you're owed something."

Earlier this month Penn's attorney filed written objections to the complaint in court, according to Barbara Beck, director of news and public affairs at the university.

"The objection makes it clear that the university believes that the complaint has no merit and should be promptly dismissed," Beck said.

"The university plans to defend itself vigorously," she added.

Rubenstone dismissed Penn's objection as "pretty standard stuff," but acknowledged that the case would take some time.

Jacobowitz, whose degree from Penn is in communications, is doing temporary work for a medical company in the Philadelphia area while he waits for responses from the numerous law schools to which he has applied.

SIGNIFICANCE

The Pennsylvania case focused renewed national attention on free speech and individual rights. In particular, the case raised difficult questions about how hate speech is defined and at what point free speech becomes unacceptable. Supporters of the women involved claim that their right to safety and security was infringed by the comment, which they perceived as racist. Eden Jacobowitz's supporters take the position that free speech includes the right to insult others.

The issue of offensive speech continues to attract attention. In 2005, the NCAA, which oversees most college athletics, announced a ban on the use of Native American imagery or mascots in post-season play, finding that their use constitutes hostile and offensive speech. Eighteen schools, including the Florida State University Seminoles, were affected by the ban. Following a vigorous appeal by Florida State and the Florida Seminole tribe, the school was granted an exemption to the rule. Carthage College elected to change its mascot from the Redmen to the Red Men and eliminate Indian imagery, while the Southeastern Oklahoma State University Savages became the Savage Storm. As of 2006, several schools were still appealing the NCAA ruling. Critics of the policy characterize it as an unreasonable application of hate speech restrictions and an example of political correctness run amok.

The conflict between free speech and hate speech is not a recent development. Speaking in 1919, U.S. Supreme Court Justice Oliver Wendell Holmes addressed this conflict by pointing out that the U.S. Constitution defends individual speech of all kinds, including speech that others may find repugnant or distasteful. Holmes argued that even ideas that may be seen as dangerous should be allowed to compete freely in the marketplace of common discussion. He contended that such ideas, once fully examined, would be unable to withstand public scrutiny and be discarded.

After graduating from the University of Pennsylvania, Eden Jacobowitz enrolled in law school. His 1996 lawsuit, claiming emotional distress and violation of contract, sought $50,000 in damages. In 1997, Jacobowitz settled his lawsuit for an undisclosed amount under $10,000.

FURTHER RESOURCES

Books

Brown, Michael K., et al. Whitewashing Race: The Myth of a Color-Blind Society. Los Angeles: University of California Press, 2003.

Kors, Alan Charles, and Harvey A. Silvergate. The Shadow University: The Betrayal of Liberty on America's Campuses. New York: The Free Press, 1998.

Satel, Sally. P.C., M.D.: How Political Correctness is Corrupting Medicine. New York: Basic Books, 2000.

Periodicals

Buckley, William F. "Church/State at Dartmouth." National Review 57 (2005): 70-71.

Chong, Dennis. "Free Speech and Multiculturalism In and Out of the Academy." Political Psychology 27 (2006): 29-54.

"Remember Detroit." Economist 378 (2006): 11.

Web sites

The Free Press. "Shadow University: The Betrayal of Liberty on America's Campuses." 〈http://www.shadowuniv.com/〉 (accessed June 8, 2006).

Ganzhorn, Derek. "'Politically Correctness' Hides Depth of Racism in America." University of Minnesota Register, November 3, 2005. 〈http://www.morris.umn.edu/register/〉 (accessed June 7, 2006).

Knott, Tom. "A Need to Pass the Peace Pipe." Washington Times, August 19, 2005. 〈http://washingtontimes.com/sports/20050819-125544-4353r.htm〉 (accessed June 8, 2006).