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

Part I and Part II.

Perhaps the most wrongheaded analysis in the Report is this:

Because the government may not “conscript private institutions to act as censors by dangling the threat of civil liability for a hostile environment,” the First Amendment “‘demands substantial deference to a college’s decision not to take action against’ students who engage in expressive activity on matters of public concern.”
In other words, courts must “‘defer to colleges’ decisions to err on the side of academic freedom.'”

Whereas a grade school’s failure to take action against a student who sexually harasses a classmate might well support an inference of deliberate indifference to that harassment—because any reasonable actor would intervene—the same is not true when a university determines how to enforce rules regarding the use of campus spaces in light of its academic mission and competing claims of different groups.”

“Expressive activity” is doing far too much work here. Universities have rules against vandalism, harassment, intimidation, and also have time, place, and manner restrictions for protest/speech activities, to avoid disruption. You might, for example, be able to chant on the campus green at lunch time, but not in the campus library.

Breaking these rules–vandalizing, harassing, intimidating, disrupting contrary to campus rules are often “expressive activities.” But they are not protected by the First Amendment, and have nothing to do with academic freedom.

And to the extent these rules are clearly stated in the student handbook, everyone breaking the rules has fair notice of what the rules are. Suggesting that universities should get deference in enforcing these rules is an open invitation to college officials to discriminate; to, for example, have a full-on campus wide meltdown when students disrupt a “Take Back the Night” rally, but do nothing when a Hillel event is disrupted.

Indeed, in a recent Harvard Law Review article, Prof. Eidelson and Hellman, cited frequently in the USCCR report, positively endorse such discrimination, suggesting that universities, for reasons that make zero sense to me, may have a greater reason for not intervening in the context of debating the Israel-Palestine conflict than elsewhere. 

This not only encourages universities to allow a hostile environment in some context regarding some protected groups, but crack down on it in others, but also invites universities to engage in disparate treatment.

Disparate treatment claims are, as the Report notes, very hard to prove because it’s so hard to compare apple situation A to orange situation B, but disparate treatment is nevertheless illegal. Yet the USCCR Report basically encourages it, by inventing a non-existent academic freedom and First Amendment right to it.

Bonus: I originally tweeted the above on X, and Prof. Edelstein responded:

David, I believe this is the discussion you construe as our “positively endors[ing]” disparate treatment (of Jews or Hillel events or something like that). I’m leaving it here so readers can judge for themselves:

Second, while we are in no position to assess the mental states of countless university administrators, there are obvious nondiscriminatory explanations for why a university might take a more cautious approach to the recent claims of alienation or exclusion raised by Jewish students than it has in some other cases. For one thing, insofar as the complaints allege anti-Israel bias, that allegation actually cuts against the required inference that Jewish students were treated differently on the basis of their race. As one court observed in rejecting a “double standard” claim, “viewpoint discrimination . . . is not actionable under Title VI.” But even setting that point aside, the simple fact that the current claims by Jewish students are enmeshed with hotly disputed views about world affairs means that efforts to accommodate them may pose risks of chilling political speech or intruding on academic freedom that are less acute in many other cases. Similarly, as our earlier discussion reflects, many of the expressive acts at the center of the relevant campus conflicts are more ambiguous — by dint of the different interpretive contexts that different students bring to bear — than are more classic examples of hate speech. The most natural comparator, in all of these respects, would be claims of discrimination and exclusion raised by Palestinian, Arab, and Muslim students, and it is far from clear that universities have been systematically more accommodating when those students have alleged peer harassment over the same period.

And I in turn rejoined, “Yes, that’s exactly what the text at footnotes 140 and 141 is endorsing.” To elaborate briefly, once you argue that universities have a legal right to “take a more cautious approach” to claims of discrimination by Jewish students than by analogous claims raised by other students, you are endorsing disparate treatment of Jewish students, and indeed inviting it.