In Gerwaski v. State of Nevada ex rel. Board of Regents of the Nevada System of Higher Education, (D NV, May 5, 2025), a Jewish student at University of Nevada Las Vegas sued the university and its president over antisemitic treatment. The court dismissed all claims against the University on 11th Amendment grounds except those under Title VI and Title VII. Several claims, including plaintiff’s free exercise claim, against University President Whitfield were dismissed, but without prejudice so that plaintiff could refile them alleging additional facts. According to the court:
Gerwaski is a Jewish student at UNLV who wears the Jewish skullcap, or kippah, at all times. Gerwaski serves in the UNLV student government and was hired as an employee at the UNLV Lied Library in June 2023. Gerwaski alleges that he was asked inappropriate questions about his Jewish heritage and sexual orientation during the library’s onboarding process and that he was “unjustly terminated” from that job in August 2023, “as a result of the blatant disparate treatment and antisemitism that was exhibited by supervisors.”… Gerwaski has also been exposed to verbal assaults by protesting members of [Nevadans for Palestinian Liberation] who made hateful antisemitic comments to him. Gerwaski has chosen to cover his kippah with a baseball cap or other head covering due to the antisemitic chants and chaos on the UNLV campus….
Whitfield argues that Gerwaski does not plausibly allege a free exercise claim because he alleges only that verbal harassment by non-parties caused him to choose to cover his kippah, not that Whitfield acted to burden his rights. Gerwaski responds that Whitfield fomented and encouraged antisemitic behavior on campus and ignored Gerwaski’s complaints, leading Gerwaski to begin covering his kippah….
… Gerwaski attempts to tie Whitfield’s toleration of protestors on campus to Gerwaski’s feeling that it was necessary to cover his kippah with a baseball cap to avoid conflict with those protestors. However, Gerwaski’s free exercise claim must be based on government action that substantially burdens his religion, not the actions of non-parties…. I grant Gerwaski leave to amend this claim against Whitfield if he can plausibly allege additional facts to support the claim and tie those facts to an ongoing constitutional violation for which he seeks injunctive relief.