First Circuit Judge on Title VI Hostile Environment Harassment Claims and the First Amendment

An excerpt from Judge Joshua Dunlap’s opinion concurring in the denial of rehearing en banc yesterday in StandWithUs Center for Legal Justice v. MIT (from my research, just the third opinion he has written since joining the court in November):

This case touches on the intersection of the First Amendment and Title VI. As such, it presents difficult issues relating to the constitutional guarantee of freedom of speech and the scope of antidiscrimination laws—and it does so in the fraught context of hot-button geopolitical controversies and the insidious reality of antisemitism. In my view, the panel went further than it ought to have gone to resolve the present dispute; nevertheless, I do not believe that the arguments raised justify rehearing en banc. I write separately to briefly note my concerns and rationale for denying rehearing….

[A]ntidiscrimination law, of necessity, only provides a partial remedy for antisemitism because of our concomitant dedication to freedom of speech. Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The First Amendment, however, prohibits government restrictions on speech based on its message, ideas, subject matter, or content, and provides “special protection” to speech relating to matters of public concern—even if it is outrageous. Title VI must therefore be applied with care for the constitutional problems that would arise if it were construed to suppress political speech. Cf. Honeyfund.com Inc. v. Governor (11th Cir. 2024); Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001); DeAngelis v. El Paso Mun. Police Officers Ass’n (5th Cir. 1995).

The panel addressed this tension by, first, concluding that Title VI does not require a university to “quash protected speech,” and, second, concluding that the protesters’ actions “did not render their speech antisemitic, much less unprotected.” As to the first conclusion, the panel affirmed that speech on matters of public concern is specially protected under the First Amendment, including on college campuses. The panel reached the latter conclusion to avoid determining whether racist speech can be punished under Title VI without violating the First Amendment. I have some concerns with the panel’s approach….

[M]y central concern … relates to the panel’s determination that the speech alleged in this case was not even plausibly antisemitic…. The panel acknowledges the existence of an “ongoing debate as to the relationship between anti-Zionism and antisemitism—debate that our constitutional scheme resolves through discourse, not judicial fiat.” But even as it makes this statement, the panel seems to impose just such a resolution by concluding that statements such as “Palestine will be free, from the river to the Sea!” and “There is only one solution! Intifada revolution!” were not—at least in the context of the facts alleged—antisemitic. But I find it at least plausible that, when made in the immediate aftermath of “the deadliest massacre of Jews since the Holocaust in a manner that reasonably appears to celebrate and glorify that same violence,” such phrases support an “inference of animus towards Jews.”

At the very least, Plaintiffs should have been afforded the opportunity to prove whether such an inference of animus could be sustained, particularly given that—as the panel acknowledges—there were other incidents of antisemitism on campus, that might also support the conclusion that the statements were something other than altruistic political opinions, see Gartenberg v. Cooper Union (S.D.N.Y. 2025) (finding that, although the speech was not necessarily antisemitic, the speech when taken in context at least plausibly supported the theory that animus toward Jews was a motivating factor); Stephen E. Sachs, Zionism and Title VI, 139 Harv. L. Rev. Forum 50, 64–72 (2025). {Some facts supporting Plaintiffs’ contentions regarding the protestors’ animus include the invitation extended by student groups to a speaker who allegedly proclaimed “Come on settlers, we will slaughter you   What Hitler did to you was a joke”; the protestors’ decision to set up camp adjacent to MIT Hillel; Plaintiff Boukin’s exclusion from Lobby 7 and the Kresge Lawn on account of her being Jewish; and another instance of a visibly Jewish student being heckled. By deconstructing the events and looking at them individually, rather than as a whole, the panel may have missed the forest for the trees.}

A simpler approach beckoned. The trial court below did not reach these issues, but instead resolved the case based on its conclusion that MIT did not act with deliberate indifference toward any harassment proscribed by Title VI. On appeal, the panel agreed with this conclusion. If the panel had grounded the opinion solely on this rationale, it would have remained on surer footing. There is certainly room for disagreement over the adequacy of the response by the Massachusetts Institute of Technology to the alleged harassment of Jews on campus; however, as acknowledged in Gartenberg, “the need to avoid a collision between Title VI and the First Amendment counsels in favor of an even more limited application of the already strict deliberate indifference standard.” In this case, at least some efforts by MIT’s administration—efforts that will likely distinguish this case from others that may arise in the future—undercut a finding of deliberate indifference. In my view, the panel should have chosen the same route as the trial court and resolved the case solely on this narrower ground.

Nevertheless, I conclude that the panel’s parsimonious and ultimately unnecessary application of the Rule 12(b)(6) standard [under which plausible factual assertions by plaintiffs have to be accepted at the motion to dismiss stage-EV] in assessing the alleged animus of the protesters does not justify rehearing en banc…. [Among other things, p]laintiffs focus primarily on a purported conflict between this case and Healy v. James (1972). That case, however, is not directly on point, as it addressed, in dicta, universities’ ability to constrain disruptive conduct, and did not assess the interplay between speech and Title VI that is present here….

In my view, the nuanced analysis set out by Judge Cronan in Gartenberg has much to recommend it as a potential means for resolving the constitutional issues embedded in the Title VI inquiry. {In Gartenberg, the court acknowledged both the central importance of speech on matters of public concern as well as the government interest in eliminating discriminatory harassment. The court concluded that Title VI generally does not “reach instances of pure speech on matters of public concern” … [and] observ[ed] that “speech ‘on a matter of public concern, directed to the college community,’ will generally fail to constitute unlawful harassment” when expressed through “generally accepted methods of communication,” but that a different result might obtain where, for example, there is “targeted, personal harassment aimed at a particular person.”

The court also concluded, however, that speech might be relevant to determining whether actionable harassment has occurred by illuminating the actor’s motivation. Utilizing that framework, Judge Cronan first considered the alleged speech in determining whether the plaintiff had plausibly alleged discriminatory motive, and then considered whether the plaintiff had adequately alleged a hostile educational environment based on actions not protected under the First Amendment.}

For more on the panel opinion, see this post; for more on the Gartenberg opinion, see this post. Thanks to Paul Alan Levy (Public Citizen) for the pointer.