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

In my previous post, I argued that contrary to a new US Civil Rights Commission Report, plaintiffs alleging an illegal hostile campus environment don’t need to show that the hostile environment was created by individuals or groups with discriminatory animus toward the protected class plaintiff belongs to.

Thus, Jewish students subject to a hostile environment don’t need to prove that the antizionist students who created the hostile environment were motivated by anti-Jewish antimus.

This raises on obvious objection: what’s to stop complainants from using hostile environment law to force universities to suppress political speech that offends them so much that they can reasonably argue that it creates a hostile environment for them? Can Hispanic students, for example, argue that speech hostile to immigration and multiculturalism creates a hostile environment, even if the speakers were not motivated by, and did not express, anti-Latino animus?

As the Report acknowledges, caselaw on whether purely political speech, not targeted at particular individuals, can create a hostile environment is far from clear.

But the Report quotes me and others as arguing, in my words, that in general “the First Amendment bars university students from basing hostile-environment claims on the ideological content of political speech they might also encounter on a street corner off-campus.”

So in my view, regardless of whether antizionist activist students are motivated by antisemitic animus, their actions can create a legally hostile environment for Jewish students. But also regardless of whether there is antisemitic animus, political speech by the activists that does not amount to individualized harassment, threats, or intimidation cannot be the basis of a hostile environment claim.

However, as I have also argued, in appropriate cases such speech can provide contextual evidence as to why actions like vandalism, disruptions, and threats, not protected by the First Amendment are reasonably perceived by Jewish students as threatening and creating a hostile environment.