Problems with the New US Civil Rights Commission Report on Campus Antisemitism, Part I

Yesterday, the US Civil Rights Commission, composed of four Republican and four Democratic appointees, with a Democratic Chair and Vice-Chair, issued a unanimous report on antisemitism on university campuses.

I find much of the legal analysis wanting, to say the least. I will have at least a few posts explaining why, starting with this one.

The Commission’s Report argues that Title VI hostile environment law only reaches hostile environment discrimination when the underlying actors accused of creating the hostile environment did so with intent to discriminate against the group claiming discrimination. (The Commission alternatively describes this as antisemitic “intent,” “motivation” or “animus.”)

In other words, Jewish students can’t bring a hostile environment claim against Harvard University unless the Harvard students who allegedly created the hostile environment did so with antisemitic intent, regardless of how the defendant, Harvard itself, reacted.

On pages 64-69, he Report cites various legal arguments, and precedents including the First Circuit’s horrible opinion in Stand With Us v. MIT, for its position, but this argument has to be wrong.

Consider the following hypothetical. Harvard deploys an AI system to send out email  announcements to students, which come from an address “HarvardAI@Harvard.edu.” Students are required to read these announcements, which provides notices about exam dates, new or revised academic policies, required student orientations and trainings, and other necessary information.

Unfortunately, the AI system goes rogue, and in addition to sending out mundane announcements, it also figures out which students belong to the Black Students Association, and starts sending them, along with the standard emails, regular emails with mundane titles like “New Dorm Security Rules” but containing text that contains vile, personalized racist invective.

Black students, individually and collectively, complain to the Harvard administration about these emails, explaining that they are taking a severe emotional toll on them and interfering with their ability to pursue their education. The administration responds that its budget for the AI system has already been spent, so there is nothing it can do to fix the problem until at least the next fiscal year.

The students file a Title VI complaint against Harvard. The Department of Education’s Office of Civil Rights dismisses the complaint, explaining that Title VI only applies where there is discriminatory animus, and AI, not being human, can’t have animus, and further that the students have not alleged that anyone who worked on the AI system intended for the system to send hateful emails to black students.

I can’t imagine this is the right legal answer, or that anyone, including the Civil Rights Commissioners, would think it is.

And that’s because no one is suing the AI system for discrimination, they are suing the university for its indifference to the hostile environment the AI system created. The “intent” that matters is the university’s deliberate indifference to the hostile environment.

Analogously, it doesn’t matter if “antizionist” students are motivated by hostility to Jews, or whether the antizionist movement is, as some argue, inherently antisemitic, because these students are not the defendants.

What matters instead is this: once Jewish students have shown that the antizionist students created a hostile environment for them, intentionally or not, that meets the (stringent) legal standard for when a hostile environment exists, did the actual defendant, the university, not fulfill its legal obligation to combat that environment.