Disparate Treatment of Anti-Israel Protestors?

Amnesty International USA and the ACLU issued a report last month purporting to document what they describe as an illicit crackdown on “pro-Palestine” expression since October 7. Needless to say, I think the problem has primarily been the opposite, university officials and local politicians and prosecutors being far too indulgent of illicit behavior by Hamasnik protestors, including vandalism, threats, disruptions, harassment and violence.

Be that as it may, the report makes a big to-do over the fact that universities have cracked down on illicit behavior by anti-Israel activists in ways that constitute disparate treatment. In particular, the report suggests that many universities that have a history of being extremely lax about disciplining rule-breaking student protestors in other contexts have been much harsher toward anti-Israel protestors.

There is some truth to that conclusion, but I don’t find the claim that alleged viewpoint discrimination required universities to stand down, for three interrelated reasons.

First, arguing some sort of estoppel for cracking down on rule-breaking is a bad legal argument. “But your honor, the government did not prosecute the last ten rapists” isn’t going to get you far.

Second, the failure of universities to properly punish misbehavior by, say, climate activists was itself viewpoint discriminatory. One can hardly imagine, say, Columbia University, acting with equanimity if anti-abortion or anti-affirmative action protestors engaged in the illicit shenanigans that leftist protestors have engaged in.

And finally, civil rights law require universities to take action against illicit hostile environments. Climate change activists may have broken university rules, but they did not intimidate, harass, and engage in violence against any identifiable group protected by civil rights laws. And that’s a legally crucial difference. I elaborated on these points in a recent article:

[Advocates for the protestors] argue that many university administrators have long looked the other way when activists for causes such as environmentalism have created encampments, held sit-ins, disrupted university events, and have otherwise violated university rules and the law.

The activists are wrong in believing that if universities have previously been derelict in their obligations to enforce campus rules, it justifies campus administrators continuing to shirk their obligations. It’s quite clear to this (and I think to any reasonable) observer that universities that have allowed sit-ins, encampments, and other rule-breaking on behalf of left-wing causes would have been very unlikely to permit similar student rule-breaking to protest abortion, illegal immigration, or other right-wing causes.

Many universities have been intolerant even of conservative speech that does not break any rules and is constitutionally protected at public universities, such as satirical affirmative-action bake sales. Universities that condemn microaggressions against other groups are silent in the fact of much more overt aggression against Jewish students. The right solution to such viewpoint discrimination is to end it.

That aside, the post-October 7 protests are distinguishable from, say, the typical anti-global warming protests that may have similarly broken the rules. Anti-global warming protests did not take place in a climate of violence nor threaten violence against any identifiable group on campus, and thus their rule-breaking did not contribute to a hostile environment for any protected class.

By contrast, lawless “antizionist” protests, as discussed above, contribute to a reasonable fear of violence against Jewish students. For example, the pro-Hamas students at Columbia who broke into a building, held two custodians against their will, and engaged in vandalism created reasonable concern that they would next engage in violence against those perceived to be Jews, or at least Jewish supporters of Israel. The targeting of, or the reasonable apprehension of the targeting of, a specific group of students protected by Title VI gives universities not only the legal right to crack down on illicit SJP protests even if they have tolerated previous illicit protests for other causes, it gives them the Title VI duty to do so if the illicit actions create a hostile environment.

In the MIT case, the First Circuit suggested that the presence of unlawful protest activity does not allow the government to punish constitutionally protected speech. The court failed, however, to consider the converse: that the presence of violent but protected rhetoric may contribute to a coercive or intimidating environment that requires a university to address conduct not protected by the Constitution.