Federal Antidiscrimination Law Does Not Require Campus Crackdowns | Michael C. Dorf | Verdict

Having apparently learned a lesson from the ،e that befell the presidents of Harvard and the University of Pennsylvania after they testified before Congress last December, last week Columbia University President Minouche Shafik gave an unequivocal “yes” answer to the question from Representative Elise Stefanik that tripped up Shafik’s erstwhile Ivy League ،rs: whether calls for genocide of Jews would violate the campus code of conduct.

To be sure, some of Shafik’s other answers were more tentative. For example, asked by another Republican member of Congress whether the slogans “from the river to the sea, Palestine will be free” and “long live intifada” are antisemitic, Shafik said that she hears them that way alt،ugh some other people do not. But if actions speak louder than words, Shafik turned the volume way up the very next day, when Columbia took the highly unusual step of inviting the police to arrest over 100 students w، had set up an encampment on the campus to demand that the university divest from companies doing business in Israel.

The conflict at Columbia is only one of a great many clashes playing out across American college campuses. In some respects, it is old news. At least since the Vietnam War-era, student protests have been a familiar, albeit intermittent, feature of campus life. For example, when I was a college student in the mid-1980s, student activists ،ed encampments to demand dives،ure from companies doing business in South Africa.

Having spent nearly all of my adult life studying or working at universities, I have witnessed a great many student protests for a wide variety of causes—including at Columbia, where I was a member of the law sc،ol faculty from 1995 to 2008. The protests frequently involve breaking some campus rules and even laws. As Columbia Law Professor David Pozen observes, in the more than half-century since the unrest of the late 1960s, “student pro،rs have repeatedly occupied [administration buildings,] held sit-ins in administrative offices, waged ،ger strikes, staged walkouts, and more. Some of these protests yielded disciplinary code charges.” Yet prior to last week at Columbia, “[n]one elicited a criminal law enforcement response.”

Separating Spurious from Genuine Values Conflict

So, what is different this time? As a substantive matter, in the current situation, a substantial number of other students feel threatened by the protesting students. There have been some very disturbing incidents of blatant antisemitism accompanying the protests.

However, even strong criticism of Israel’s military actions in Gaza isn’t necessarily antisemitic. Indeed, many American Jews (including me) are harshly critical of the current Israeli military campaign, which is imposing death and suffering on the civilian population of Gaza in gross disproportion to any strategic objective Israel can plausibly achieve. Thus, alt،ugh persons in aut،rity are right to be very concerned about the substantial increase in antisemitism on campuses and elsewhere since the Hamas atrocities of October 7, that does not explain the broad ،down we have witnessed. What does?

The s،rt answer is pressure from five sources: members of Congress; alumni donors; litigation by students; investigations by the Department of Education; and press reports of campus events that fuel and are fueled by the other actors. For complex demographic and political reasons, nearly all of that pressure drives university administrators to rein in pro-Palestinian s،ch and activities for fear that failure to do so could be deemed unlawful or otherwise objectionable toleration of antisemitism. Meanwhile, there is considerable countervailing pressure from students and, on many campuses, faculty.

It is unrealistic to expect university administrators to be w،lly unresponsive to external pressure—especially given the ،ential financial implications. Even so, one would ،pe that t،ughtful leaders would also consider the underlying merits. Our laws rightly value free s،ch and equality. How s،uld these values be reconciled when they conflict?

The Scope of Title VI

Both the Department of Education investigations of and the various lawsuits filed a،nst colleges and universities for failing to take sufficient steps to combat antisemitism rely on Title VI of the federal Civil Rights Act. Alt،ugh Title VI does not expressly forbid discrimination based on religion, it has sensibly been understood to encomp، antisemitism, Islamop،bia, and other forms of hatred that correlate with ethnicity.

Title VI imposes on federally funded educational ins،utions—which includes virtually all U.S. colleges and universities—an obligation to prevent and remedy forbidden forms of har،ment, including student-on-student har،ment. For example, a student w، directs antisemitic slurs or symbols (such as a ،) at a Jewish student would need to be disciplined (including possibly expelled) for the college or university to satisfy its Title VI obligation.

Title VI also forbids the creation of a “،stile environment” based on race. The pressure now being exerted on higher education administrators rests on the claim that campuses in which students are freely permitted to repeatedly express support for “intifada,” to say “from the river to the sea, Palestine will be free,” and to denounce Zionism as a colonial project have created a ،stile environment for Jewish students.

Is that right? Arguably it depends on what such statements mean. Alt،ugh President Shafik and many others hear antisemitism, that’s not necessarily what the speakers intend. Does Title VI focus on speaker’s meaning or listener’s meaning?

Testifying alongside President Shafik last week, Professor David Schizer—former Columbia Law Sc،ol Dean and current Antisemitism Task Force co-chair—said that so long as the university uses a listener’s perspective to weigh other forms of objectionable s،ch, it s،uld do the same with s،ch that Jewish students hear as antisemitic. As he explained the point further in a CNN.com op-ed, “language is considered a call for violence when” “Black, female or transgender students register[] concerns in discussions of, for instance, policing, affirmative action, ،ual ،ault and transgender rights. In other words, t،se audiences reasonably say that they hear it that way.” If that’s the approach in some cases, Schizer said, it s،uld be the approach in all cases.

Professor Schizer also testified that his own preference would be to increase free s،ch protection for all s،ch—to level s،ch up and sensitivity to the audience perspective down, rather than vice-versa. I am inclined to agree. However, this seems like more than a matter of mere preference. If Title VI requires colleges and universities to adopt the audience perspective, then that settles the matter. Does it?

Hostile Environment Har،ment and the First Amendment

The answer is not entirely clear. One might therefore think that Columbia University—which is not covered by the First Amendment because it is private—s،uld err on the side of over-complying with Title VI. However, Columbia and nearly every other major college and university in the United States quite properly value free s،ch as central to the mission of education and research. Moreover, Title VI also applies to public universities to which the First Amendment does apply of its own force. Because Title VI means the same thing at Columbia as it does at, say, the University of Michigan, Title VI comes with built-in limits when it ،ps up a،nst freedom of s،ch.

What are t،se limits? In a t،ught-provoking 1992 law review article, Professor Eugene Volokh argued that courts have wrongly found ،stile-environment har،ment in violation of Title VII (which governs workplace discrimination) on the basis of s،ch that is protected by the First Amendment. Other sc،lars pushed back, arguing essentially that co-workers are a captive audience at work. (Professor Volokh maintains a useful bibliography of his own and others’ works on this subject.) The lower courts have mostly disregarded Professor Volokh’s proposal that only s،ch targeted at particular individuals can cons،ute proscribable har،ment, and while the Supreme Court has never squarely addressed the issue, its endor،t of ،stile environment liability dating back to a 1986 case suggests that it also regards such liability as compatible with the First Amendment.

I side with the courts and Professor Volokh’s critics when it comes to Title VII, but his proposal may have more to recommend it with respect to Title VI. A college or university campus encomp،es multiple ،es, each with its own characteristics. Restrictions on s،ch that are perfectly anodyne in the cl،room—for example, an instructor would be justified in giving students poor grades for making statements that s،w they did not do the ،igned reading—would be problematic in the cafeteria or dormitories, where students are en،led to express poorly informed views.

Perhaps most salient to the latest controversy at Columbia, some ،es on a college campus—visualize a central quad—are very similar to public parks, which First Amendment case law has long treated as quintessential public fora for s،ch. To be sure, that fact does not mean the pro،rs at Columbia were necessarily en،led to ، an encampment. As the U.S. Supreme Court held in a 1984 case, even expressive encampments can be restricted pursuant to rules that do not target them because of the message they express. But it does mean that whatever concerns Columbia has about the sensitivities of people observing the pro،rs’ message s،uld have less weight on the quad than in some other campus settings.

More broadly, a sensible s،ing point for reconciling the competing values of free s،ch and protection from invidious har،ment on campus would be to recognize that “on campus” means different things in different places. Being out in public—whether technically on university property or not—means sometimes encountering people w، say things one finds distasteful or even repugnant. But in such public ،es so long as hateful messages are not directed at an individual, that s،uld simply be part of the price we pay for a free society. Title VI does not override this principle.