Legal Bullying Aims to Silence Campus Critics of Israel

A sad fact of jurisprudence in an unequal world is that good laws created to promote justice are often used perversely by the powerful to thwart justice. Title VI of the 1964 Civil Rights Act is a prime example. Originally intended to combat discrimination based on race, color, or national origin, the law is misused today to quash pro-Palestinian speech and speech critical of Israel on university campuses.

Protection from discrimination under Title VI extends to individuals and groups defined by shared ancestry, or by citizenship or residency in a country with a dominant religion or distinct religious identity. On university campuses, responsibility for enforcement of Title VI, except for complaints citing discrimination based on religion, falls to the Office of Civil Rights (OCR) of the Department of Education.

Under the law, complaints are warranted when students in a protected category experience severe, pervasive, and persistent harassment that creates a hostile environment that impedes their ability to learn. Examples of what the OCR considers harassment include the use of ethnic slurs, mocking of foreign accents, speech, or names, and acts of physical intimidation linked to ethnic stereotypes.

If an OCR investigation finds that a university has failed to prevent systematic discrimination or allowed severe, pervasive, and persistent harassment to flourish, the university can lose federal funding. Which means that Title VI has teeth; it can help ensure that all students have a fair opportunity to learn. This is the justice-seeking goal of the law.

Unfortunately, Title VI has also been weaponized to silence speech that supports Palestinian rights or criticizes Israel. This has been going on for at least twenty years, and is happening now more than ever. Since October 7, 2023, the Education Department’s OCR has received 33 complaints alleging discrimination based on shared ancestry involving a college or university, according to Inside Higher Ed. Many, though not all, of these complaints have come from partisans of Israel.

These complaints typically cite instances of pro-Palestinian speech or speech critical of Israel as “creating a hostile environment for Jewish students,” and therefore as violations of Title VI. Examples of incidents cited in complaints include accusing Israel of practicing apartheid, advocating for boycott, divestment, and sanctions against Israel, showing the film “Israelism,” hosting speakers who criticize Israeli state policies, protesting speakers who represent the Israeli government, students chanting pro-Palestinian slogans at rallies, and offhand classroom remarks by professors critical of Israel.

Students should never suffer discrimination or harassment based on their race, ethnicity, or national origin. That’s the problem Title VI was meant to address. For this purpose, it remains a valuable tool.

An important thing to know about these complaints is that, after full investigation, they are consistently dismissed.

The principal reason for dismissal is that the incidents cited as “harassment” are in fact obvious instances of permissible free speech. As the presiding judge wrote in a decision resolving a 2011 case at UC-Berkeley, “A very substantial portion of the conduct to which [the complainants] object represents pure political speech and expressive conduct, in a public setting, regarding matters of public concern, which is entitled to special protection under the First Amendment.”

In 2021, the OCR strongly asserted that Title VI enforcement shall not “diminish or infringe upon any right protected under Federal law or under the First Amendment.” And to its credit, the OCR has generally abided by this principle over the years, ultimately rejecting complaints that target free speech. But these failures haven’t stopped partisans of Israel from continuing to file suits under Title VI. They carry on because prompting an investigation is consequential.

University administrators understandably want to avoid the reputational damage that can come from being subject to a civil rights investigation, and so they will often accept resolution agreements that admit no fault but make promises to do better at responding to any campus occurrences that could be construed as antisemitic, anti-Israel, or as making Jewish students feel unsafe.

In the shadow of these agreements, administrators often begin to aggressively monitor campus activities that might draw further negative attention. Administrators may then also look for ways to mute the speech—meaning pro-Palestinian speech or speech critical of Israel—that they see as causing the trouble. Common tactics of suppression include requiring “balance” when pro-Palestinian speakers are brought to campus, insisting that organizers of pro-Palestinian events pay prohibitively high fees for security, and, in extreme cases, suspending pro-Palestinian student groups, making it impossible for them to hold events on campus.

The threat of reputational damage can likewise affect other members of a campus community. Students, faculty, and staff may be deterred from speaking out in support of Palestinian rights, criticizing Israel, or joining groups that support Palestinian liberation, for fear of being labeled antisemitic, accused of discrimination, or involved in a civil rights suit. So even without repressive administrative action, free speech and association in support of Palestinian rights can be chilled.

We don’t need to guess about the motives of pro-Israel bullies. Proponents of the complaint-filing strategy can be surprisingly unabashed about what they’re up to. For instance, Kenneth Marcus, founder and current leader of the Louis D. Brandeis Center for Human Rights Under Law, explained how the strategy is supposed to work.

“These [Title VI cases],” Marcus wrote in a 2013 op-ed in The Jerusalem Post, “even when rejected expose administrators to bad publicity. ... [I]t hurts them with donors, faculty, political leaders and prospective students.” Students, too, are a target, Marcus admitted. “We are creating a very strong disincentive for outrageous behavior by students. ... Needless to say, getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.” Could the intent to suppress speech be any clearer?

As noted, the strategy of misusing Title VI to chill speech critical of Israel is being pursued with new vigor. In the current political climate, this is hard for the Department of Education to resist. But resist it should, as Palestinian rights organizations have long urged, or else free speech in the university stands to be greatly harmed. A case now pending at UNC-Chapel Hill suggests how expedited disposition of politically motivated Title VI complaints could help to prevent this harm.

The complaint against UNC was filed in December, 2023, after a New York-based attorney, David E. Weisberg, learned of two incidents on the North Carolina campus. In one incident, a pro-Palestinian speaker on a seven-person panel titled, “No Peace Without Justice: A Round-Table Talk on Social Justice in Palestine,” praised the ingenuity displayed by Hamas fighters on October 7 and refused to apologize for the violence used to break out of what she called, referring to Gaza, a “concentration camp.”

The other incident allegedly occurred in October, 2023, in a class on rhetoric and public issues. According to the complaint, the professor remarked on one occasion that Israel and the United States “do not give a shit about international law or war crimes.” Later, amidst Israel’s assault on Gaza, the professor reportedly described Israel as “a clearly fascist state committing genocide under the guise of it supposedly being the only democracy in the Middle East.”

No doubt these blunt remarks might unsettle students who embrace the glowing image of itself that Israel tries to project to the world. But having one’s beliefs challenged is part of what higher education ought to entail. And remarks critical of a state, remarks protected by principles of free speech and academic freedom, cannot fairly be seen as actionable harassment under Title VI.

Weisberg, the complainant, invoked the contentiously broad definition of antisemitism advanced by the International Holocaust Remembrance Alliance (IHRA) to label these incidents antisemitic, further alleging that the incidents created a hostile educational environment for students of Jewish descent who “entertain positive feelings toward the modern State of Israel.” The Department of Education’s OCR agreed to investigate.

Even though the OCR expressly states that agreeing to investigate a complaint is not a judgment of a complaint’s merits, doing so nonetheless appears sufficiently validating to give a legal bully a partial victory. In the UNC case, the incidents cited in the complaint are protected expressive speech, and by no means amount to severe, pervasive, and persistent harassment. As with similar complaints that have been filed over the years, this one will be investigated and almost certainly dismissed.

No doubt these blunt remarks might unsettle students who embrace the glowing image of itself that Israel tries to project to the world. But having one’s beliefs challenged is part of what higher education ought to entail.

For now, though, the university must deal with the investigation, and administrators will feel pressure to resolve the complaint, perhaps agreeing—as on a previous occasion—to be more alert and responsive to anything on campus construable as antisemitic, no matter how far-fetched such a construal might be. Campus supporters of Palestinian rights will also be subject to closer scrutiny as the investigation proceeds, and perhaps find it harder to hold events and draw an audience. The goal of the bullying strategy will thus be achieved. Other campuses where investigations are underway will be similarly affected.

An expedited process for handling Title VI complaints of this kind is long overdue. Instead of accepting new complaints that mirror the bogus complaints that have been rejected again and again—complaints that point to nothing but clear instances of free speech and offer no credible evidence of harassment or discrimination—the OCR should quickly review and summarily reject these frivolous complaints as attacks on free speech that impede everyone’s ability to learn.

Real discrimination is of course intolerable and calls for corrective action. Students should never suffer discrimination or harassment based on their race, ethnicity, or national origin. That’s the problem Title VI was meant to address. For this purpose, it remains a valuable tool.

But the law can also be misused, as partisans of Israel have done, to protect Israel from criticism and stifle pro-Palestinian voices. This isn’t ultimately about the safety of Jewish students, many of whom are already critical of Israel and Zionism. It is, rather, about keeping the ideologies that sustain oppressive social arrangements safe from the corrosive effects of critical education. To keep this liberatory possibility alive, we should resist threats to free speech, and be especially wary when they are disguised as efforts to fight discrimination.