Editor’s Note: This article was originally published by Liberty Unyielding on July 6, 2024 and is crossposted here with permission. It has been edited to fit Minding the Campus’s style guidelines.
The Education Department is pressuring colleges to restrict speech that denounces pro-Palestine protesters or denigrates Jews or Palestinians—such as speech calling pro-Palestine protesters “terrorists”—under the rationale that such speech potentially contributes to a hostile educational environment for Jewish or Arab students and thus constitutes racial harassment in violation of Title VI of the Civil Rights Act. This will inevitably lead to violations of the First Amendment and freedom of speech.
The Education Department says that colleges need to take action to prevent speech and conduct that “cumulatively created a hostile environment,” even if no individual speaker says anything severe enough to create a hostile environment all by itself. If speech is even a tiny bit offensive to an Arab or Jewish complainant, it can contribute to a hostile environment “cumulatively” and thus trigger a college’s duty “to end the hostile environment, remedy its effects, and prevent its recurrence.”
This puts colleges in a bind because, when a Title VI complaint is filed with college officials about anti-Israeli or anti-Palestine speech that offended the complainant, the college doesn’t know if more such speech will occur in the future, thus “cumulatively” will add up to a hostile environment—such as if the complainant hears similar speech from other students as well. To avoid being held liable for a hostile environment by the Education Department, the college thus has an incentive to punish speech critical of Israelis or Palestinians that only mildly offends a complainant—speech that is protected by the First Amendment.
The Supreme Court, after all, has ruled that its “precedents … leave no room for the view that … First Amendment protections should apply with less force on college campuses than in the community at large,” since universities are “peculiarly the marketplace of ideas.” (See Healy v. James (1972)).
The Supreme Court has also ruled that the fact that speech is offensive does not strip it of First Amendment protection. The First Amendment protects even campus speech that is crude and violates “conventions of decency,” as the Supreme Court explained in Papish v. Curators of the University of Missouri (1973).
Requiring speech to be restricted because it could potentially contribute to a hostile environment is the sort of broad prophylactic rule that the First Amendment forbids. “Broad prophylactic rules in the area of free expression are suspect,” according to the Supreme Court because First Amendment freedoms ‘‘need breathing space to survive.” (See NAACP v. Button, 371 U.S. 415, 438 (1963)).
Even hateful, bigoted speech that inflicts emotional distress is often protected by the First Amendment, as the Supreme Court made clear in Snyder v. Phelps (2011).
For a college to discipline a student because their speech is mildly offensive and will thus likely “cumulatively” lead to a hostile environment over time when aggregated with the speech of future speakers would violate court rulings against overbroad campus harassment policies. For example, it would violate a federal appeals court ruling that struck down a school’s ban on speech that creates a hostile environment, where that policy applied even where a student’s speech was not “severe or pervasive” and thus not bad enough to create a truly hostile environment. (See Saxe v. State College Area School District (2001)).
Even if a student’s speech is mild, it could easily add up to a hostile environment when aggregated with the speech of other speakers, which could be far more offensive. In the aftermath of October 7, some Jews were told to “go back to Poland,” Hamas was exhorted to “kill another soldier now,” and the October 7 killings were overtly and repeatedly celebrated.
Speech that is not aimed at the complainant or any other student can nevertheless contribute to a hostile environment, says the Education Department in its recent letters of findings in response to Title VI complaints against colleges. “Harassing acts need not be targeted at the complainant to create a hostile environment,” says the Education Department in a resolution letter to the University of Michigan, even though in non-civil-rights contexts, the courts find that speech not directed at someone is not harassing and is generally protected by the First Amendment, even if it repeatedly and regularly offends the complainant.
Whether such speech is hostile or not, it can be protected, like the racially-charged anti-immigration emails an appeals court ruled were protected by the First Amendment in a racial harassment lawsuit, even though they offended a college’s Hispanic staff, in Rodriguez v. Maricopa Community College District, 605 F.3d 703 (9th Cir. 2010). The court in that case cited the fact that those emails were not directed at any specific Hispanic employee as a reason to find them protected by the First Amendment, despite the emails’ recurrent, racially-charged nature, which allegedly gave rise to a hostile work environment. Thus, such emails could not be treated as a civil-rights violation or as grounds for liability under the equal protection clause or Title VII of the Civil Rights Act. Similarly, antisemitic or anti-Arab statements should not be grounds for liability under Title VI even if there are many of them, if they are not directed at the complainant.
As the Foundation for Individual Rights and Expression notes, “The Department of Education’s unconstitutional new ‘cumulative’ theory of harassment means colleges and universities now have little choice but to investigate [First Amendment] protected speech at protests, in classrooms, and online — or risk losing federal funding.” It adds, “The move sets a deeply chilling precedent for students or faculty with dissenting, minority, or unpopular views, on or off campus, who may now be subjected to not only harassment allegations, but mandatory government investigations — regardless of the allegations’ merits.”
The Education Department’s unconstitutional pressure to restrict speech also applies to private colleges. Such colleges are not themselves bound by the First Amendment, but that does not mean they can be pressured to restrict the speech of their students or staff. Federal appeals courts have ruled that federal pressure on private employers to fire employees for their speech can violate the First Amendment, even though the First Amendment doesn’t bind a private employer. See Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990); Reuber v. U.S., 750 F.2d 1039 (D.C. Cir. 1985); Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005).
The Education Department’s unconstitutional pressure to restrict speech also was criticized by Reason Magazine’s J.D. Tuccille, who wrote:
Campus protests that started out as anti-Israel and too often slid over into flat-out antisemitism and pro-terrorist advocacy shocked much of the nation in recent months … But one body that really should butt out unless the protests cross beyond the bounds of protected speech is the government.
“The Department of Education is required by law to guard against discrimination on the basis of race, color, or national origin in higher education,” the Foundation for Individual Rights and Expression (FIRE) noted last week. “Now the agency is telling college and university administrators they can only achieve this important goal by violating the First Amendment.”
FIRE points to agreements between the Department of Education’s Office for Civil Rights (OCR) and the University of Michigan, the City University of New York, and Lafayette College, which were under investigation for their handling of campus protests in the wake of Hamas’s October 7 attack on Israel. The agreements indicate official dissatisfaction with how the schools managed responses to the protests and require stronger action in the future.
“OCR found no evidence that the university complied with its Title VI requirements to assess whether incidents individually or cumulatively created a hostile environment for students, faculty, or staff, and if so, to take steps reasonably calculated to end the hostile environment, remedy its effects, and prevent its recurrence,” reads the agreement with the University of Michigan.
FIRE objects that federal bureaucrats seem to want the university to treat expression by students, whether or not it’s coordinated, as contributing towards some critical mass of bad vibes. Once an invisible line of cumulative nasty statements is crossed and a hostile environment considered to exist, the document suggests that official intervention becomes necessary.
How is that point to be determined? The agreement commits the University of Michigan to administer a “climate assessment” to evaluate the degree to which “students and/or employees are subjected to or witness discrimination and harassment based on race, color, and national origin.” The assessments will then be used “to identify responsive steps for OCR’s review and approval” in dealing with hostile speech on campus.
“This unconstitutional mandate rewrites the rules of campus speech,” said Alex Morey, vice president of FIRE. “OCR has invented a completely new standard that needlessly pits First Amendment rights against federal anti-discrimination law, dangling the threat of punishment over every discussion.”
As Tuccille observes, “requiring ‘climate assessments’ of schools to determine if campus discourse has passed some invisible hostility threshold that necessitates official intervention goes too far. Any such assessment will inevitably be subjective and tend towards the restrictive side as administrators fear drawing the wrath of federal bureaucrats and the financial sticks they wield as potential penalties.”
Title VI and Title IX do require colleges to restrict certain harassing speech that is both severe and pervasive enough to create a hostile environment that interferes with an education. But that does not mean they require schools to punish an instance of speech merely because it may later be viewed by a complainant as part of a hostile environment that is “cumulatively” created by the speech of different speakers. The law allows colleges to wait until the line has already been crossed by a student before punishing him. As the Seventh Circuit Court of Appeals explained in C.S. v. Madison Metropolitan School District, 34 F.4th 536, 542 (7th Cir. 2022), “only once the misconduct line has actually been crossed does Title IX impose an affirmative obligation on school districts to act—both to remedy the existing misconduct and to prevent the further foreseeable risks from materializing. [It] does not permit the imposition of liability based on risk alone … What all of this means as a legal matter is that a school district’s duty to act is not triggered until it has actual knowledge of facts which, in the totality of the circumstances, indicate that sex-based discrimination has occurred or is occurring under its watch.”
Photo of U.S. Department of Education, Washington, D.C. — Flickr
Hans Bader is a *former* senior attorney at the Competitive Enterprise Institute.
Updated.