Alarmed by the sharp rise in campus antisemitism and facing intense pressure from both Democrats and Republicans to end it, the Department of Education’s Office of Civil Rights has launched dozens of investigations of colleges and universities.
Although the Department has for decades interpreted Title VI of the 1964 Civil Rights Act to cover religious discrimination or harassment based on “shared ancestry,” enforcement efforts have skyrocketed. In the last year, the Office of Civil Rights has issued four guidance letters and opened at least 145 investigations, 80 percent of them involving claims of antisemitism.
Unfortunately, the Office of Civil Rights is applying standards that are legally problematic, burdensome and virtually impossible to meet. But many schools, petrified of cuts in federal funding and other sanctions, have responded with restrictions on campus protests that undermine the free, unfettered expression and robust debate that are central to their academic mission.
The Supreme Court has held that educational institutions must act when peer-to-peer discriminatory harassment is “so severe, pervasive, and objectively offensive … that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Yet the Department of Education’s recent guidance states that conduct that is “sufficiently severe, pervasive, or persistent” and that merely “limits,” rather than denies, equal educational access creates a hostile environment.
Equally troubling, the Education Department maintains that even when colleges and universities determine that the conduct at issue — such as student chants of “from the river to the sea,” a depiction of an Israeli soldier as a Nazi or a comparison of the death of a Palestinian person to the death of Jesus — constitutes protected speech, they must continue to investigate.
In a resolution agreement reached with Lafayette College, the Education Department acknowledged the college’s responsiveness to complaints of antisemitism, which included emails to the community, Title VI trainings, interfaith vigils, support for affected individuals and “extensive efforts to meet with and ensure the safety of all Jewish students, faculty and staff.” Nonetheless, the Education Department concluded that Lafayette improperly failed to consider whether offensive social media posts, many if not all of them protected speech, “individually or collectively” contributed to a hostile environment.
Each of the seven resolution agreements that the Department of Education has reached with universities to date finds a similar failure.
Catherine Lhamon, the assistant secretary for civil rights in the Department of Education, insists that it is “an astonishing misconception” to assume “some kind of contrast or divide between … respecting free speech rights and not discriminating.” But she emphasizes that even when speech is constitutionally protected, “a school still has a federal legal obligation to ensure that the very same speech does not create or contribute to a hostile environment.” Lhamon has listed several steps colleges and universities can take short of disciplining students, including holding conversations about institutional values, offering counseling to affected students, educating the campus about the complaint process and encouraging civil discourse.
Lafayette and other institutions, it’s important to point out, have done all that and more, and the Department of Education still found its response inadequate.
In a critique of the Education Department’s attempts to square a circle, Alex Morey, vice president of campus advocacy at the Foundation for Individual Rights and Expression, recently concluded that the Office of Civil Rights “has invented a completely new standard that needlessly pits First Amendment rights against federal antidiscrimination law, dangling the threat of punishment over every discussion.”
Few colleges or universities have the resources or trained personnel to investigate every problematic social media post or potentially offensive utterance, especially when each complaint must be examined in light of all other incidents and reports. Complaints, moreover, can include statements made outside the classroom and off campus, and may be lodged by anyone. Conservative and Jewish advocacy groups have already filed many of them. The editor-in-chief of the conservative website Campus Reform alone filed 33 complaints. And the onus is on the institution to take action, even when the initial complainants do not want to proceed and when the person whose conduct triggers the complaint is not a member of the campus community.
The Education Department’s guidance documents offer little meaningful direction. Its resolution agreements contain only vague requirements, such as conducting annual training, reviewing institutional policies and creating action plans. Even when colleges and universities follow all the outlined steps, they may still be held accountable if antisemitic incidents continue.
Despite the Education Department’s frequently stated respect for free inquiry, a finding that a hostile environment exists on a campus is certain to be followed by demands from students, alumni, donors and politicians to punish individuals or groups — including faculty — deemed responsible for creating one. Far from producing a safe environment conducive to civil discourse, this approach is likely to stimulate protests and increase polarization.
By law, colleges and universities can only be found responsible for a Title VI violation if they have exhibited “deliberate indifference.” But with federal funding at stake, it is understandable why administrators are accepting the Education Department’s toothless resolution agreements and erring on the side of repressing protected speech instead of fighting the government in court.
To be sure, some colleges and universities have shown a lamentable reluctance to address campus antisemitism. These institutions do warrant scrutiny from the Office of Civil Rights. But the vast majority are trying hard to foster an inclusive environment for all students without stifling campus discourse.
The Education Department’s Office of Civil Rights would do well to rethink its approach and help colleges find an appropriate balance without expecting them to take actions that are neither reasonable nor feasible and that set a dangerous precedent for free expression on campus.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University. David Wippman is emeritus president of Hamilton College.
