College and University Responsibility,” by David E. Bernstein

The article is here; the Introduction:

Since Hamas’s October 7, 2023 attack on southern Israel, the start of the subsequent war in Gaza, and an outbreak of campus protests expressing vehement hostility to Israel, dozens of universities across the United States have faced lawsuits, administrative complaints, and federal investigations alleging dereliction of their Title VI duty to protect Jewish students from discrimination. These Title VI claims typically include allegations that universities have been deliberately indifferent to the way actions by anti-Israel protesters have created a severe and pervasive hostile environment for Jewish and Israeli students.

Public attention has focused on perceived hateful speech by anti-Israel protesters. This includes slogans seen as calling for the destruction of Israel (e.g., Arabic chants of “From River to the Sea, Palestine is Arab”); speech that is often interpreted as calls for violence against Israel, Jews, and their supporters (e.g., “Globalize the Intifada” and, in Arabic, “Khaybar Khaybar oh Jews, the army of Muhammad will return”); expressions of support for Hamas in general (e.g., “Glory to the Martyrs”) and its October 7 crimes in particular (e.g., flyers that feature paragliders, glorifying the Hamas terrorists who massacred Israelis after flying into Israel on paragliders); and pro-Hamas events on October 7, 2024, the anniversary of the massacre.

Judicial decisions and scholarly commentary have tended to frame the Title VI claims primarily as conflicts over political expression of this sort by anti-Israel protesters. In late 2023, the federal Department of Education advised university officials that in the context of anti-Israel protests, constitutionally protected speech alone can create a hostile environment that universities are obligated to address, albeit without suppressing speech.

Much of the subsequent debate, in courts and otherwise, has been over whether rhetoric widely perceived as antisemitic or as endorsing violence in the abstract can ordinarily support hostile-environment liability without violating the First Amendment. Jewish students’ claims should be rejected, some argue, as objections to rhetoric the students find deeply offensive but that is constitutionally protected. A recent attention-getting article asserted that Jewish students’ claims may not ordinarily rely—even merely as evidence of an overall hostile campus climate—on campus protesters engaging in such incendiary rhetoric.

This Article argues that prevailing analyses of post-October 7 Title VI claims are incomplete and are often legally mistaken because they ignore or misinterpret a central element of hostile-environment doctrine: context. Hostile-environment law asks whether conduct is so severe, pervasive, and objectively offensive that it effectively denies students access to educational opportunities. This inquiry is contextual and depends on the “constellation of surrounding circumstances.”

The context, or surrounding circumstances, neglected by many analysts is the surge of antisemitic assaults, threats, vandalism, and intimidation on and around American campuses. When rhetoric endorsing or glorifying violence occurs against a backdrop of credible threats and actual violence, it may reasonably be experienced as threatening even if the same words would otherwise be understood in a different context as merely abstract or ideological rhetorical excess or overkill. Treating Jewish students’ fear of violence as irrelevant or irrational improperly strips the contextual analysis from the “reasonable person” standard used in hostile environment law.

Yet recent judicial decisions, to the extent they have recognized it at all, have treated Jewish students’ fear of violence as either irrelevant or irrational, even where that fear is grounded in recent incidents of assault, intimidation, and lawless conduct directed at Jewish students and at Jewish institutions. In doing so, courts have effectively assumed away the very conditions that may make certain speech threatening rather than merely offensive.

This does not mean that chants, slogans, flyers and other speech perceived as endorsing violence automatically created or even contributed to a hostile environment. Moreover, even if speech does create or contribute to a hostile environment for Jewish students, such speech is constitutionally protected, so long as it does not rise to the level of incitement or a “true threat.” Universities therefore do not and cannot have a Title VI obligation to suppress protected political speech.

The question, however, is whether Jewish students may have a valid Title VI action for university malfeasance or inaction when it comes to policing behavior by protesters that is not constitutionally protected. The violence-endorsing speech, rather than being the basis of a Title VI claim, serves as relevant context for why the universities had a Title VI obligation to enforce their own rules and the law.

As described later in this Article, since October 7, Jewish students have faced a surge of physical assaults, credible threats, vandalism, and coordinated intimidation against them on campuses nationwide, alongside a broader national wave of antisemitic violence. Against that backdrop, Jewish students’ fear of violence is not speculative or subjective, but empirically grounded. When such fear undermines students’ access to education, universities have a Title VI obligation to address the overall hostile climate. They can do so, without suppressing protected expression, by enforcing neutral rules against trespass, vandalism, threats, and other illicit conduct not protected by the First Amendment.

Failure to account for students’ fear of violence has concrete doctrinal consequences. Courts have dismissed Jewish students’ hostile-environment claims at the pleading stage by characterizing allegations as mere discomfort with opposing viewpoints, even where plaintiffs allege assaults, threats, encampments that block access to parts of campus, and administrative indifference to lawless conduct. By excluding fear of violence from their contextual analysis, these decisions collapse the distinction between ideological offense and intimidation, and they risk turning Title VI’s “reasonable person” standard into an abstract exercise divorced from reality. Worse yet, some courts and commentators have treated illicit actions by anti-Israel protesters as if they are constitutionally protected speech.

This Article proceeds in five parts. Part I documents the surge of physical violence, threats, and intimidation targeting Jewish students on American campuses since October 7, 2023, demonstrating that rhetoric endorsing violence operates within an atmosphere of tangible danger. Part II situates campus developments within a broader national context of antisemitic violence against Jewish individuals and institutions, reinforcing the reasonableness of Jewish students’ fears that they will be the targets of violence. Part III examines the organizational and ideological ties between leading sponsors of anti-Israel campus protests and groups that openly endorse violent “resistance,” explaining why certain chants and slogans may reasonably be perceived as menacing in context. Part IV draws out the implications for Title VI doctrine and university compliance, arguing that courts can and should require universities to address illicit conduct and threatening environments without infringing on First Amendment protections. Part V addresses First Amendment objections to using protected speech as evidentiary context in hostile-environment cases by explaining why universities’ failure to suppress related illicit, unprotected actions has violated Title VI. This Part rejects the notion that universities warrant distinct judicial solicitude in their regulation of unlawful conduct connected to student protest, and also concludes that the chilling effects doctrine does not apply to rulings that allow complainants to rely on hateful, violence-endorsing speech as contextual background in a hostile-environment case.

This Article concludes by emphasizing that courts and administrators must interpret Title VI’s “reasonable person” standard in light of the contemporary reality of antisemitic violence, on and off campus. Courts can demand that universities prohibit illicit behavior by anti-Israel campus constituents, such as trespass, vandalism, and threats, while still protecting the rights of protesters to express their opinions.