The past eighteen months have seen an unprecedented wave of claims by public officials and private plaintiffs that universities are violating their legal obligations to Jewish students under Title VI of the Civil Rights Act of 1964.1 These charges center on an equally unprecedented wave of anti-Israel and anti-Zionist activity on college campuses, much of which is alleged to cross the line from ordinary political activism into antisemitism.2 Yet there has been little direct engagement by scholars of antidiscrimination law with the merits of these exceptionally high-stakes claims about Title VI.3 And even as universities and their allies have begun to resist the demands of the Trump Administration’s “Task Force to Combat Anti-Semitism,” they have focused overwhelmingly on the procedural irregularities of the enforcement effort rather than the underlying assertion that the universities have violated their legal obligations.4
In this Essay, we outline and offer concise analyses of the main substantive legal questions posed by the recent Title VI allegations about campus antisemitism. Although specific facts matter and not all of the issues are clear-cut, we conclude that appeals to Title VI in this area face formidable hurdles — beginning with the omission of “religion” as a protected characteristic — that have attracted surprisingly little attention thus far. That is not, of course, to say that campus antisemitism is acceptable. But it does mean that, for the most part, universities have both the right and the responsibility to balance their competing commitments in this area using their own considered judgment. Our analysis also highlights an irony in efforts to link charges of campus antisemitism with a broader critique of progressive ideas about race.5 As we will see, construing anti-Zionist and anti-Israel activities as anti-Jewish discrimination would likely require revising antidiscrimination law in ways that progressives have long advocated and that the Trump Administration has denounced.6
Our analysis proceeds in three Parts. Because Title VI addresses discrimination on the basis of “race, color, or national origin,”7 we begin in Part I with the question of when and how being Jewish qualifies as a protected characteristic under the statute. We then proceed to unpack and assess the two leading theories of how universities have violated Title VI — mainly by tolerating a hostile environment (Part II), but also by engaging in disparate treatment (Part III). Much of our analysis on both points would naturally extend to claims that Israeli students have been subjected to national-origin discrimination, but, in light of space constraints, we will not take up that distinct issue here.
I. Jewishness Under Title VI
Whereas Title VII’s ban on employment discrimination includes “religion” as a protected characteristic, Congress limited Title VI’s ban on discrimination in federally funded programs to “race, color, [and] national origin.”8 Before we can turn to questions about Zionism and support for Israel, then, we have to answer a critical threshold question: How is anti-Jewish discrimination covered by Title VI at all?
Answering that question requires appreciating a bit of the complexity and historical contingency of what it means to be Jewish. For the most part, “[i]n the contemporary United States, the assumptions that Jews are white and that Judaism is a religion prevail.”9 Yet Jews were widely understood as a distinct racial group in the nineteenth century, and even as talk of the “Jewish race” has fallen out of use, “[r]acialist ideas about Jewishness — heritable characteristics, traits, and tendencies — continue to be deeply embedded.”10 Alongside and overlapping this race-like category, there is also a longstanding conception of Jews as a people or nation — a collective that is not reducible to the more biologically oriented notion of a “Jewish race,” but that resembles it in that membership is generally inherited and does not necessarily depend on any religious conviction (or even a person’s own felt identification with the group).11
What elements of this mixture make it through the filter of Title VI’s language? Our answer, in short, is that Title VI plausibly covers “being Jewish” in the sense of having (or being perceived as having) an immutable, heritable characteristic — whether that characteristic is viewed as a “race” or a “national origin.” As between the two, “race” seems more apt, especially because “national origin” has generally been understood to refer to “the country where a person was born, or, more broadly, the country from which his or her ancestors came.”12 This point is not crucial, though, because even if the Jewish people qualified as a “nation[]” in the statute’s sense, the protected characteristic would remain a person’s “origin,” which is inherently a matter of birth or ancestry.13 One way or another, that is, “Jewishness” is plausibly protected insofar as it names a characteristic that people have (or are imagined to have) by dint of their birth. And although courts have sometimes conflated different senses of “being Jewish” in this context — perhaps because litigants have not always disaggregated them14 — our more nuanced position accords with both judicial authority and executive-branch practice.15
As for the courts, the leading case on anti-Jewish discrimination is the Supreme Court’s 1987 decision in Shaare Tefila Congregation v. Cobb.16 The case arose from a Jewish congregation’s private suit, under the Civil Rights Act of 1866,17 against vandals who had defaced their synagogue with Nazi slogans and iconography.18 The Court agreed with the defendants that the plaintiffs were required to allege “racial animus” that “was directed towards the kind of group that Congress intended to protect.”19 But that “kind” of group, the Court reasoned, was an “identifiable class[] . . . [that faces] discrimination solely because of their ancestry or ethnic characteristics.”20 “Such discrimination,” the Court explained in a companion case, “is racial discrimination that Congress intended [the statute] to forbid, whether or not it would be classified as racial in terms of modern scientific theory.”21 (In naming “ethnic characteristics” alongside “ancestry,” the Court thus seems to have been referring to other heritable features, such as “distinctive physiognomy,” that are taken as markers of membership in a race-like, ancestry-defined group.22) At least at the time of the 1866 statute, moreover, Jews were understood to constitute a racial group in the relevant sense.23 The Court thus appears to have held that adverse treatment for being Jewish in a heritable, race-like sense — but not for being Jewish in other senses — was proscribed by the statute. And this accords with the Court’s holding, in the companion case, that a plaintiff would prevail if he could “prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion.”24
The handful of lower courts that have faced the question of Shaare Tefila’s applicability in the Title VI context have treated it as controlling there as well, and we will proceed on that same premise here.25 It bears noting, however, that the issue is not clear-cut, because there is substantial “evidence . . . that Jews were no longer considered to constitute a separate racial group in 1964.”26 For many interpreters, then, the issue would likely turn on a familiar kind of level-of-generality question: As used in the 1964 statute, is “race” better understood to express a general concept or a concrete, time-bound list of categories?27 We cannot explore the many nuances of that issue here but, to a first approximation, those who sided with the majority in Bostock v. Clayton County28 might be expected to take the broader view, and those persuaded by Justice Alito’s dissent might be expected to take the narrower one.29 In any case, we will assume here that Title VI covers “race” discrimination in the broader sense that would include the kind of anti-Jewish discrimination that the Court singled out in Shaare Tefila.30
The modern position of the executive branch with respect to Title VI is much the same. As the Department of Education’s Office of Civil Rights put it in a 2024 guidance document: “Title VI’s protections against discrimination based on race, color, and national origin encompass antisemitism . . . when based on shared ancestry or ethnic characteristics.”31 Using an illustration reminiscent of Shaare Tefila, the agency explained that a hypothetical incident would warrant investigation under Title VI because “[t]he use of swastikas and the graffiti/taunts related to hygiene, impurity, and racial hierarchy suggest that the alleged harassing conduct depicts Jewish people as a separate, and inferior, race.”32 President Trump’s 2019 executive order on “Combating Anti-Semitism” took essentially the same position. “While Title VI does not cover discrimination based on religion,” he wrote, “[d]iscrimin-ation against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.”33 In a guidance document about the effect of the order, the Department of Education then reiterated that “[a]n anti-Semitic incident does not violate Title VI merely because it is anti-Semitic.”34
* * *
In keeping with the analysis above, we will describe the relevant protected characteristic here as “racial Jewishness” or “Jewish ancestry.” We appreciate that even to speak of a Jewish “race” has an antisemitic ring today,35 but to the extent that other terms such as “ethnicity” serve as more appealing euphemisms, they come at a steep cost in clarity. As we read the statute — and as we take the courts and the government to read it — anti-Jewish and anti-Black discrimination are covered to the same extent and on the same terms.36
With the relevant protected characteristic in view, we can turn to the two theories of liability that have loomed large in recent com-plaints about anti-Zionist or anti-Israel activity on college campuses — beginning with the claim of a “hostile environment” for Jewish students.
II. A Racially Hostile Environment for Jews?
Since the 1990s, the Department of Education has interpreted Title VI to prohibit federally funded schools from tolerating what the agency has termed a “racially hostile environment.”37 The agency transplanted this concept from a body of Title VII case law concerning racial and sexual harassment in the workplace.38 In 1999, the Supreme Court ratified that extension by recognizing liability under Title IX (which closely resembles Title VI) for K-12 schools that “subject[]” students to sexual harassment by a peer.39 According to the Court, students are faced with a hostile environment under that statute — and thus presumably also under Title VI — when they experience “harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”40
This much-cited formulation41 leaves unclear just where the nexus to a protected characteristic figures into the analysis — in our context, what makes for racial harassment and hence, in the aggregate, for a racially hostile environment. Under one natural view, racial harassment is just a species of conventional disparate treatment, at the hands of peers, on account of race.42 What is critical would then be the reasons that certain students acted on in mistreating or disfavoring others.43 But it is also possible to understand the racial element of a “racially hostile environment” as pertaining to the offensiveness of the underlying conduct, rather than to the reasons why anyone was singled out.44 Suppose, for example, that middle-school students repeatedly propound antisemitic conspiracy theories and deny the Holocaust in their history class (and their teacher shrugs it off). A student of Jewish ancestry might well find that environment especially offensive and alienating, potentially hindering their education. And that problem would remain even if neither the offending students nor the teacher even thought that there were any Jewish students in the class — meaning that nobody decided to treat the Jewish student worse by reason of their Jewishness.
The viability of this broader notion of a “racially hostile” environment — in which it is not necessary that anyone intentionally treated racially Jewish students differently — is not clear. Versions of the idea have some support among lower courts in the Title VII context,45 but the Supreme Court has arguably sent mixed messages about it.46 As for Title VI itself, the Department of Education has repeatedly asserted that “[h]arassing conduct need not always be targeted at a particular person.”47 But even conduct that is not “targeted at a particular person” might still be aimed at insulting or humiliating a set of people who share a particular trait — and some intention vis-à-vis the affected students, as bearers of the protected characteristic, might thus be necessary even under the agency’s reading.48
There is also a further complication, specific to Title VI, that bears on the availability of the broader hostile environment theory here. When the Court held that schools may be liable for student-on-student harassment, it relied on the fact that the statute prohibits a funding recipient from “subject[ing] [persons] to discrimination” within a federally funded program.49 Meanwhile, the Court has also held that Title VI’s operative provision (unlike Title VII’s) “reach[es] only . . . intentional discrimination.”50 Putting these holdings together, it might follow that the peer harassment that constitutes the underlying “discrimination” must consist of disparate treatment. Yet the issue is not straightforward, because the Court has also recognized (albeit with reservations in recent years) that agencies may promulgate regulations to “effectuate”51 Title VI that go beyond the operative provision’s own requirements.52 And because the Title VI regulations have long been construed to embrace a kind of disparate impact theory, they could be taken to ground the broader conception of a hostile environment (albeit only in an agency enforcement proceeding, not for purposes of Title VI’s private right of action).53 Ironically, President Trump’s recent directive to repeal Title VI regulations that “impose disparate-impact liability or similar requirements”54 could thus turn out to limit his Administration’s options for treating anti-Israel activity as creating a hostile environment for Jewish students.
Given all of this uncertainty about the legitimate scope of the hostile environment theory, we will consider separately how each of the two variants sketched above applies in the current context. That requires asking two different questions, both of which build in the result of our earlier inquiry into the relevant sense of “Jewishness.”55 First, when (if ever) is disfavoring someone for being a Zionist tantamount to disfavoring them for being racially Jewish? And second, when might anti-Israel activities, even if they do not constitute disparate treatment on the basis of race, nonetheless make an environment actionably offensive to people of Jewish ancestry? After answering these questions, we will turn to the issue of a university’s liability for tolerating or failing to remedy a hostile environment of either of these kinds if one exists.56
A. Race-Based Disparate Treatment
The first of the two questions that we have distinguished mainly pertains to the Title VI complaints’ various allegations of concrete acts of harassment or other discrimination, by fellow students, against Zionists or supporters of Israel.57 These include that students attempted to create “Zionist-free” areas on campus, with physical checkpoints; that student journals refused to publish articles by authors who have expressed Zionist views; and that student clubs sought to exclude Zionists from membership.58 Are practices of this sort also cognizable as disparate treatment of Jewish students, such that (if severe and pervasive enough) they could add up to a hostile environment?59
Once we appreciate that Title VI recognizes Jewishness only as a racial or ancestral category, the short answer — under existing law — is “no.” Courts have long faced the question whether race-associated cultural practices (such as wearing braids, locks, or cornrows) are protected as facets of “race” for purposes of statutory bans on race-based disparate treatment. And absent a successful claim of pretext, they have consistently held that antidiscrimination law affords no such protection.60 As one leading case observed, a “conception of what ‘race’ means” that would extend to “cultural practices,” as opposed to “immutable characteristics,” “runs headlong into a wall of contrary caselaw.”61
Notice that this same disparate-treatment question might be answered quite differently if Title VI covered Judaism as opposed to racial Jewishness. Although “Zionism” has a complex history and multiple meanings, it is, for many people, a religious conviction about the connection between the people of Israel and the land of Israel.62 And disfavoring someone because of a belief to which they are religiously committed might qualify as disfavoring them because of their religion.63 But racial and ancestral categories differ from religious ones in that the former are not defined in terms of beliefs. Indeed, the Supreme Court has held that equal protection forbids even treating these characteristics as suggestive evidence of a person’s beliefs.64 To be sure, one could reject this thin and formalistic conception of protected characteristics — as critical race theorists and others have long urged65 — and embrace a more substantive vision of antidiscrimination law across the board. Under existing law, however, disfavoring people simply because of their beliefs or practices cannot amount to race-based disparate treatment.
This does not mean that no anti-Israel or anti-Zionist activity could amount to race-based disparate treatment, however. For one thing, a purported objection to “Zionists” might simply be a pretext for excluding Jews. That kind of intentional discrimination clearly qualifies as disparate treatment of Jews, not merely of Zionists.66 In addition, some complaints allege that students who are thought to be Jewish have been treated adversely because they are presumed to be Zionists, at least unless they say otherwise.67 That, too, is cognizable as disparate treatment on the basis of being Jewish.68 Both of these kinds of cases do, though, pose the difficult factual question of whether the students were disfavored or singled out for “being Jewish” in the racial sense.69 We expect that instincts will vary about the likelihoods of different mental states here, so we will not purport to answer the question in the abstract. The most we can usefully say is that anti-Zionist acts of exclusion or “shunning” on campus could add up to a racially hostile environment if, but only if, they amount to severe and pervasive harassment even once the set of relevant instances is restricted to those in which (a) an intent to exclude students of Jewish ancestry motivates the exclusion, or (b) it is a student’s perceived Jewish ancestry that grounds an inference about their views regarding Israel. Exclusion of Zionists per se would not suffice.
B. Racially Offensive Conduct
As we saw above, differential treatment by reason of one’s race is not the only possible ground of a hostile environment theory. Such a claim could also rest on campus activities that Jewish students justifiably experience as hostile to people like them — as in our example of the Jewish middle-schooler whose classmates go on antisemitic rants in class.70 As we also noted earlier, it is questionable whether such a claim is ever viable — especially without appeal to the agency’s disparate-impact regulation, which is on shaky legal footing, is not enforceable in private litigation, and is apparently about to be repealed.71 But assuming that categorical limitation is unsound or inapplicable, the question becomes when anti-Israel or anti-Zionist activity, although not targeted at racially Jewish students, might be so “objectively offensive” to a “reasonable person in [their] position”72 that it “effectively bars [their] access to an educational opportunity or benefit.”73 This question could be asked both about expressive activities, such as denunciations of Israel in class presentations or protest slogans,74 and also about disparate treatment or “shunning” of Zionist peers that (for the reasons discussed in the previous section) may not qualify as race-based disparate treatment.
Because what “rises to the level of actionable ‘harassment’ . . . ‘depends on a constellation of surrounding circumstances, expectations, and relationships,’”75 our attempt to capture the reasonable person’s perspective here must begin with “careful consideration of the social context.”76 And, importantly, we take it that this context-specific reasonableness inquiry is at least partly normative in character. Just as a police state cannot stamp out otherwise-reasonable expectations of privacy by instituting surveillance,77 an employer or institution presumably cannot render otherwise-abusive treatment permissible merely by making it routine. Indeed, if the reasonable person’s expectations had been pegged solely to what actually occurs, sexual harassment law could never have gotten off the ground. As in other areas of the law, therefore, the inquiry must concern what expectations “society is prepared to recognize as reasonable”78 in the setting at hand, even if some existing cultural norms might demand either more or less. Recognizing the normative and legally constructed character of “objective” offensiveness in this setting also affords some room for First Amendment concerns, which naturally bear on how Title VI should be construed, to inform the bounds of the conduct from which a person could reasonably expect to be shielded.79
The Court demonstrated the importance of context to the hostile environment inquiry — and also the implicit normative dimension of that inquiry — when it first applied Title IX to peer harassment in the K-12 context. “[S]chools are unlike the adult workplace,” Justice O’Connor explained, not only in that “students often engage in insults . . . and gender-specific conduct that is upsetting to the students subjected to it,” but also in that the persistence of this conduct is “understandable.”80 In fact, one can hear the Court as saying that, given what a K-12 school is — a place where “students are still learning how to interact appropriately with their peers”81 — exposure to some degree of hostile, gender-based conduct is not a discriminatory obstacle to participation in the “program or activity” so much as an inevitable component or byproduct of that program itself.82
Although the Court has never had occasion to set a comparable standard for the university context, it seems clear that there, too, what the “reasonable student” finds severely offensive must turn on what it is appropriate for students to expect that they may face in light of the nature of the activity at issue. This does not mean that the K-12 and university standards should be similar, but that they should be similarly derived — each reflecting the activity’s purposes and the degree of insulation from identity-related offense that these aims make it reasonable for participants to expect. In fact, the university context makes the necessity of such a normative conception of reasonableness only more apparent. Without this normative element, any trend among students toward greater expectations of protection from offense would automatically be locked in by Title VI: Universities would be obliged to meet these expectations — and most likely to further escalate them in the process — even if they frustrate the university’s pedagogical function and academic mission.83
Given all of that, we think there is a rough set of baseline norms and expectations that many would recognize as both familiar and well-suited to the university environment. As one court recently put it, “in the context of higher education, . . . the reasonable student expects (if not hopes) to encounter . . . ‘the unfettered exchange of ideas’ concerning a wide range of controversial topics.”84 Students thus assume the risk that they will confront, at least in the “college classroom [and] its surrounding environs,”85 almost any of the messages and ideas they might encounter on the street corner. That does not mean that students welcome such a wide range of ideas; many students undoubtedly take great offense at disfavored viewpoints and withdraw from or stigmatize the speakers as a result. Yet the prevailing understanding remains that these offensive speakers are acting within their rights as members of the community — an understanding that is reflected in the sense that the university would have no business censoring them based on the content of their speech.
To be sure, this norm favoring open expression in the university context is not unqualified. For one thing, it does not extend to literal “harassment” in the sense of conduct that genuinely singles a fellow student out for insistent, personal abuse.86 And more broadly, the norm might not reach other expression that can only plausibly be understood as intended to insult or demean members of a group defined by a protected characteristic. (Recognizing this broader exception to the pro-speech norm would mean, in effect, that the two conceptions of a “hostile environment” that we distinguished earlier actually converge with respect to expression in the university context.87) For our purposes, it suffices to say simply that the “reasonable person” assumes the risk of being offended by others’ political expression at a university at least when the offensive activity can plausibly be understood as merely reckless with regard to the identity-related offense that others will justifiably take (rather than as aimed at provoking that response).88
Needless to say, all of this differs from the typical workplace or K-12 school. In the workplace, political expression rarely has any special connection to the organizing purpose of the institution and is commonly restricted. More broadly, if somebody is severely offended by their coworkers’ non-work-related behavior, and that reaction is reasonable, it is probably also reasonable to expect the behavior to stop.89 Likewise, in an elementary school (and perhaps a middle or high school), an expectation that teachers will ordinarily take steps to address activities that some children reasonably find very upsetting seems entirely appropriate. An actionably “hostile environment” could thus come into being more readily in those settings. Within a university environment, however, we doubt that expressive activity can be “severely” and “objectively” offensive, in the legal sense that the case law contemplates, unless (perhaps) the expression can only reasonably be understood as malicious.90
Of course, some will say that this speech-friendly norm departs from how universities have, in fact, conducted themselves in recent years. Two points bear emphasis in light of that concern. First, as we noted a moment ago, if universities have erred in this regard, Title VI should not be interpreted to compel them to keep digging.91 Second, if the complaint is not that universities have tolerated harassment when they ought not to have, but rather that they have tolerated harassment when they would not have if others had been affected, that is not a hostile environment claim but a traditional disparate treatment claim. We will turn to such claims in Part III.
In the interest of confronting rather than avoiding hard questions, however, we will first illustrate the practical upshot of our discussion here by applying the analysis to examples of the two kinds that we noted at the outset of this section: (1) anti-Israel protests that are alleged to cross the line into antisemitism; and (2) attempts by student groups to exclude Zionists or supporters of Israel from membership.
1. Protest Slogans. — Many recent claims of a hostile environment have rested in part on slogans and chants employed by pro-Palestinian protesters, such as “globalize the intifada.”92 Although we appreciate that this rhetoric elicits discomfort for many Jews on college campuses (including, candidly, both of us), we take our analysis to imply that being subjected to it in public spaces could not ordinarily contribute to a hostile environment under Title VI. Examining this rhetoric more closely will help to illustrate why.
Like many words and symbols that figure in political conflicts, “intifada” has multiple resonances imparted by its usage for different purposes within different communities.93 For many (especially Jews of a certain age), the word is akin to a proper noun and mainly evokes the Second Intifada — a discrete historical episode in which Palestinian suicide bombers targeted and murdered Israeli civilians at nightclubs, on buses, and elsewhere. (As one Jewish undergraduate observed, “[g]rowing up in a Zionist family . . . ‘the word intifada was only associated with death and terrorism and destruction.’”94) But the word is also commonly used in other communities to refer to the phenomenon of Palestinian resistance more broadly — or, indeed, to refer to resistance movements in the Arab world more broadly still.95 To the extent that the word’s usage with respect to Israel calls to mind a particular image, moreover, for many that will not be suicide bombings, but the “stone-throwing by Palestinian youths against . . . tanks and soldiers” that “caught the attention of news media around the world” in the late 1980s, when the word “intifada” became widely associated with Palestinian resistance in the first place.96
Now, even for those who want only to urge worldwide support for Palestinian resistance in the thinnest sense, the fact that some will hear a call for “intifada” as urging the murder of Israeli Jews furnishes a powerful reason to avoid that word. As Peter Beinart observes, “[t]he aftermath of October 7 was an extremely inopportune time for slogans that blur the line between different forms of resistance.”97 Given the historical moment and broader interpretive context that is salient for many American Jews, a Jewish student who is disturbed and offended when confronted with chants of “intifada” on campus should not be dismissed as thin-skinned or unreasonable. Moreover, at least once the reactions of Jewish students became widely known,98 there were powerful reasons of sensitivity to change approach — and the failure to do so may give reasonable cause for offense in itself.99 So, too, could the possibility of emboldening those who do harbor a hatred, not just of current political arrangements, but of Jews as such.
But none of this entails that protesters who hew to the “intifada” chant are making that choice in order to provoke, insult, or threaten their Jewish (or even Israeli) peers. Quite apart from any such motive, it is unsurprising that some Palestinians (and those aiming to express solidarity with them) might strongly favor “our indigenous language as Palestinians.”100 Indeed, even somebody who sincerely regrets the distress inflicted on Jewish peers might be reluctant to help cement a norm that amounts to a taboo on the prevailing Arabic word for Palestinian resistance. Moreover, to the extent that the Israel-Palestine conflict is itself substantially about the just status relations of Jews and Palestinians in the Middle East, asking Palestinians (and those professing support for them) to prioritize sensitivity to Jewish students over competing concerns of authenticity or solidarity might be felt — rightly or wrongly — as asking too much. Finally, some protesters might well take the fact that many Jews on college campuses have joined in solidarity with them to cast doubt on others’ insistence that the word “intifada” is so deeply entrenched as a “call for . . . genocide”101 that it can only be abandoned.102
For our purposes, it is unnecessary to adjudicate the balance of competing reasons here (which is not to say that we think — or do not think — the question is a close one). Our point is really just the opposite: This is exactly the kind of debate that nobody should expect university officials to resolve by fiat in the name of reducing warranted offense. Rather, as the Chicago Statement on Freedom of Expression (adopted by more than 100 institutions)103 says, “[i]t is for the individual members of the University community, not for the University as an institution, to make [such] judgments for themselves.”104 That principle might run out, we have suggested, when an activity’s offensiveness to a racial group is manifestly its raison d’être, but not when the potential for offense is plausibly understood as a side effect tracing to even a culpable lapse of sensitivity.105
Finally, although we have focused on speech that is offensive to many Jewish students, the same of course goes for rhetoric that some Palestinian or Arab students regard as highly offensive — such as “I stand with the IDF,” which some foreseeably hear, in context, as asserting the permissibility of what they regard as atrocities committed against Palestinians.106 Even if, in some settings, a hostile environment can be formed from the collateral effects of nonmalicious protest activity that is reasonably felt as highly offensive toward a protected group, a suitable understanding of the norms that govern the university context plausibly rules that out as a matter of law.
2. Exclusion of Zionists. — What about the targeted exclusion of Zionist students from formal or informal student groups? If cognizable harassment must be motivated by a protected characteristic, our earlier discussion of these cases is controlling (because Zionism itself is not one) and further analysis is unnecessary.107 But what if, as we are now assuming, it suffices that students of Jewish ancestry could reasonably take severe offense at some conduct (even though it is not targeted at them as members of that class)? Would the exclusion of Zionist students then contribute to a hostile environment for Jewish students? Although this claim is not clearly meritorious either, we think it is at least somewhat stronger than the parallel one about protest slogans that we have just rejected.
Making a firm judgment about this kind of case would require resolving hard questions about the sense in which conduct must be offensive to (or perhaps regarding) members of a racial group, especially when the group is internally divided about how the conduct relates to their shared identity.108 There is at least a colorable argument, though, that it is objectively offensive for students to exclude peers from activities — especially activities that are only tenuously related to the Israel-Palestine conflict — on the basis of felt attachments to Israel that everyone knows to be heavily and non-accidentally concentrated among people of Jewish ancestry.109 In other words, Jewish students who are excluded might reasonably see that practice as manifesting an insulting tolerance for a state of affairs in which they and many other Jews end up banned from diverse aspects of campus life by dint of commitments that their fellow students know that many see (even if others do not) as bound up with their identity as members of a protected group.110 (This line of thought is not unique to Jewishness; the logic would be the same for exclusions based on the other race-associated cultural practices that we mentioned above.111)
And if this means that the exclusion of Zionists can indeed be racially offensive in the relevant sense (a significant “if”), then it is crucial that no firm norm about the university context appears to disqualify that offense from contributing to a legally cognizable hostile environment.112 Unlike offensive speech, acts of exclusion based on a person’s beliefs are neither a routine feature of the campus environment nor clearly shielded by the ideal of open expression that we appealed to above.113 Conduct of this kind might contribute to cognizable hostility, then, although it would still need to be “pervasive” enough to have “a systemic effect on educational programs or activities” in order to ground a hostile environment under Title VI.114
C. Inadequate Response
Finally, whatever exactly a “hostile environment” requires, the existence of such an environment does not place a funding recipient in violation of Title VI on its own. Liability depends, rather, on the funding recipient’s failure to respond to that situation in an adequate way. And here the Supreme Court’s case law, developed in the context of private suits for damages, is strikingly different from the Department of Education’s enforcement guidance.
For purposes of damages suits (such as those some universities have recently faced115), the Court has emphasized that the proper standard in the peer harassment context is highly forgiving. In order to support liability, the Court reasoned, the defendant’s act of “subject[ing]” students to peer harassment must itself be intentional.116 A claim can thus prevail only if a school acted “intentionally” by at least “remaining deliberately indifferent to . . . [qualifying] harassment of which it had actual knowledge.”117 As we will explain in a moment, this standard, in conjunction with our earlier analysis, would seem to leave only the slimmest prospect of damages liability for a university.
For purposes of administrative enforcement, by contrast, the Department of Education has articulated a much more demanding standard. According to the agency, the Court’s insistence on intentionality (even in the form of deliberate indifference) is a unique feature of the damages context.118 The agency could thus deem a school in violation if the school “failed to take prompt and effective steps reasonably calculated to . . . eliminate any hostile environment and its effects.”119 The agency has justified this substantive rigor by pointing to the compensating procedural protections of its enforcement scheme — in which the agency “must attempt to secure compliance by voluntary means” and “fund termination . . . comes only after the recipient has notice of a violation and an opportunity to correct it.”120 (Notably, the President’s “Task Force to Combat Anti-Semitism” does not appear to be observing these constraints.121) Insofar as the agency’s substantive standard does away with any requirement of intentional action by the funding recipient, however, it embodies a strikingly expansive conception of regulated parties’ affirmative responsibility to curb discrimination — one that again sits uneasily with the Trump Administration’s professed vision of antidiscrimination law.122
Without finely parsing how the judicial and administrative standards might differ, we will briefly consider how they might apply to three different forms of peer harassment and corresponding possible interventions. First, given the nature of the university context, we strongly doubt that the Court would read Title VI to require the imposition of content-based speech restrictions or wholesale restrictions on avenues for communication (such as blocking access to online fora123) in the name of curing a hostile environment.124 Certainly a university that opted against those measures on mission-related grounds would not thereby show itself to be indifferent to the harassment that persists as a result. And, although the nuances of the First Amendment issues are beyond our purview here, even the agency has said that schools (including private ones) need not take any remedial measures that, for a public institution, would violate the First Amendment.125
Second, especially insofar as a hostile environment might comprise diffuse acts of social exclusion or “shunning,” any assessment of the adequacy of a school’s response would need to account for the degree of control that the institution exercises over its members. In the K-12 context, the Court suggested that school officials could fairly be held responsible for their inaction in the face of a student’s harassment because they wield “comprehensive authority . . . to prescribe and control conduct in the schools” — power “that could not be exercised over free adults.”126 As the Court therefore also acknowledged in passing, universities exercise vastly less control over the conduct of their vastly greater numbers of students, all of whom are adults rather than children.127 Especially at moments of intense group conflict in the wider world, it is thus possible that peer harassment, perhaps even rising to the level of a hostile environment, could exist and that a university could nonetheless have done all that it could reasonably be expected to do to protect adults from one another’s hostile sentiments in social life.128
Finally (and conversely), if a cognizable hostile environment for students of Jewish ancestry were grounded in severe and pervasive discrimination by recognized student groups, prohibitions on exclusion from those groups might well be required as a “reasonably calculated” response (although failing to respond in that way would not necessarily evince deliberate indifference). At a minimum, a university charged with purging a racially hostile environment could surely be expected to ban discrimination on the basis of race, including Jewishness. But it is also at least possible that — whether because of the practical difficulties of disentangling decisions based on race, religion, and politics in this context,129 or because one concludes that some people of Jewish ancestry reasonably regard anti-Zionist exclusions as racially offensive130 — broader antidiscrimination rules for membership in student groups could be required as well.
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So where does all of this leave us with regard to claims that, through their inaction in the face of anti-Israel activities, universities have unlawfully tolerated a racially hostile environment for Jewish students? Although we have acknowledged a number of caveats and loose ends, we are, on the whole, quite skeptical of the merits of these claims under existing law. If the relevant harassment must consist of disparate treatment, a hostile environment will exist only if Jewish students are severely and pervasively harassed because of their Jewish ancestry.131 And if the relevant harassment can take the form of other conduct that is severely and objectively offensive to people of Jewish ancestry (a legal theory that may not be viable at all132), the university context likely disqualifies the bulk of the expressive conduct that has loomed large in this area from meeting that description.133 The conduct that might most plausibly withstand that filter — exclusion from particular student groups based on support for Israel — seems unlikely to rise to the level of a systemic obstacle to educational access.134 But, finally, even if it did, a reasonable effort to curb the relevant acts of discrimination would clearly suffice to meet the university’s obligations for purposes of damages liability. And — again assuming all of the other hurdles were cleared — adjustments to antidiscrimination rules might well suffice to resolve the matter under a sincere application of the agency’s enforcement standards as well.135
III. A Racial Double Standard for Jews?
We will consider more briefly a second liability theory that some have advanced — not that universities have tolerated a hostile environment for Jews, but that the universities themselves have engaged in prohibited differential treatment of Jews. The main form that this supposed differential treatment takes is an alleged double standard for responding to the complaints or accommodating the concerns of Jewish students as compared to those of others.136 While the existence of such a double standard is ultimately a factual question (and so admits of no across-the-board answer), two general points are significant.
First, under existing law, a disparate-treatment claim must allege not merely that a university has behaved differently in different instances, but that the reason for this disparity was a difference in the races of the affected parties. Indeed, the Supreme Court has often said that disparate treatment requires “a discriminatory intent or motive,” thereby at least suggesting that even implicit bias against a racial group or unreflective disparities in attitudes of sympathy and indifference would not suffice.137 A successful “double standard” claim would thus likely need to establish a conscious preference for other racial minorities over racial Jews, not merely a difference in outcomes or even a deficit of felt solicitude for less familiar beneficiaries of campus inclusion efforts.
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.138 As one court observed in rejecting a “double standard” claim, “viewpoint discrimination . . . is not actionable under Title VI.”139 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.140 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.141 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.
Conclusion
We take our discussion here to show that the applicable legal analysis under Title VI is more nuanced, less settled, and generally less friendly to the recent wave of antisemitism accusations than a casual observer might imagine. Given the fact-sensitivity of that analysis, we cannot opine here on the merits of any actual or hypothetical Title VI action against any particular university. But under the most plausible rendering of current law and its natural implications, claims that failures to “uphold civil rights laws” are “endemic in our nation’s most prestigious universities and colleges” are unfounded.142 Even as universities highlight the bad faith and procedural deficiencies of the Trump Administration’s enforcement efforts, therefore, they should avoid acquiescing to the premise that they have failed to meet their legal obligations. We do not doubt that universities can improve on any number of fronts, including both fostering a greater sense of inclusion and better protecting freedom of expression. But to the extent that some stakeholders might favor a particular balance between the two, they should be expected to justify that judgment on its merits rather than claiming, explicitly or implicitly, that Title VI is forcing their hand.
The Harvard Law Review is soliciting a Response to be published in Volume 139.