Colleges Can’t Say They Weren’t Warned

“In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the U.C.L.A. campus because they refused to denounce their faith.” Those are the first words of an angry court opinion by Mark Scarsi, a Federal District Court judge in California.

On Aug. 13, he issued an injunction that requires U.C.L.A. to keep its campus fully and equally open to Jewish students, including Jewish students who believe “they have a religious obligation to support the Jewish state of Israel.”

Scarsi’s decision (which U.C.L.A. is appealing) was one of three court opinions rendered in the past three weeks that collectively send a message to American universities: This year, there cannot be a repeat of the antisemitic harassment we saw on all too many college campuses over the last year. The cases are still in their early stages. Many facts are still contested, and we may face years of litigation before the cases are finally resolved, but the decisions so far teach an important lesson nonetheless.

In the aftermath of the Oct. 7 Hamas terrorist attack on Israel, a number of universities were taken by surprise by the sheer sustained disruption and by the antisemitic animosity on their campuses. They struggled to respond effectively. As the war continues — and as the conflict with Hezbollah escalates on Israel’s northern border — universities can no longer claim to be surprised.

They know what might happen this school year, and this knowledge has legal significance. If they fail to protect the free speech of students or to protect students from antisemitic or Islamophobic harassment, there will be consequences.

The case at U.C.L.A. includes claims by Jewish plaintiffs that they were discriminated against and blocked from gaining access to parts of campus because of their religious support for Israel, a viewpoint the First Amendment protects. The other two cases — one at M.I.T. and the other at Harvard — focused on claims of antisemitic harassment under Title VI of the Civil Rights Act of 1964.

The Cambridge cases were decided by the same federal judge — Richard Stearns, from the District of Massachusetts — but they came out in very different ways. He dismissed the lawsuit against M.I.T., and he permitted the Title VI claims against Harvard to go forward. The reason for the distinction is simple. Though both campuses experienced a burst of antisemitic incidents, according to the evidence presented to the judge, M.I.T. took concrete actions to prevent harassment on campus; Harvard, by contrast, “failed its Jewish students.”

(Again, it’s worth emphasizing that the case is in its early stages, and Harvard will have ample opportunity to contest the plaintiffs’ claims. The M.I.T. plaintiffs will also have an opportunity to appeal the dismissal of their case, if they so choose.)

As the court writes in its Harvard opinion, M.I.T.’s failure was “its failure to anticipate the bigoted behavior that some demonstrators — however sincere their disagreement with U.S. and Israeli policies — would exhibit as events unfolded.” But, the court writes, “despite M.I.T.’s failure of clairvoyance, it did respond with a perhaps overly measured but nonetheless consistent sense of purpose in returning civil order and discourse to its campus.”

The available evidence suggests that Harvard’s response was quite different — “at best, indecisive, vacillating and at times internally contradictory,” Stearns writes. For example, he refers to an incident in which Harvard Law School’s dean of students, Stephen Ball, emailed students to tell them that the lounge in the Caspersen student center on campus, was limited to “personal or small group study and conversation.”

According to the plaintiffs’ complaint, Ball sent that email after pro-Palestinian demonstrators had protested in the space for two weeks and Jewish students had requested access to hold their own demonstration. Instead of granting equivalent access, the university attempted to stop the protests entirely.

Yet the pro-Palestinian demonstrators defied that edict and hosted a “vigil for martyrs” in Caspersen lounge. Rather than enforce the rule, according to court documents, Ball attended the vigil. In another incident, Harvard police officers reportedly stood by as a Jewish student was charged and pushed.

In still another allegation of disparate treatment, the plaintiffs claim that “Harvard required Chabad, a campus Hasidic Jewish community center, to remove its Hanukkah menorah from campus each night to prevent it being vandalized” yet provided round-the-clock security to a pro-Palestinian “Wall of Resistance.”

As the court notes, Harvard’s leaders acknowledged the eruption of antisemitism on campus, and dismissing the complaint “would reward Harvard for virtuous public declarations that for the most part,” according to the plaintiffs’ allegations, “proved hollow when it came to taking disciplinary measures against offending students and faculty.”

The U.C.L.A. case was slightly different. It involved claims brought by Jewish students that they faced discrimination not simply because they were Jews but because their religious convictions required them to support the Jewish state of Israel. The court ruled that the First Amendment protects their beliefs, and U.C.L.A. — as a public university — must protect the First Amendment, even when “third-party agitators” arrive on campus and try to block students from full access to its facilities.

Taken together, these cases reaffirm the principles I wrote about during the first wave of campus unrest. First, the right to speak on a public university campus includes the right to engage in offensive speech. The most extreme Zionist and the most extreme supporter of Palestinians have equal rights to speak, even when their words might offend. Celebrating Oct. 7, for example, and calling for the indiscriminate bombing of Gaza both glorify lawless violence, but it doesn’t matter: They are both protected by the Constitution.

The right to speak, however, does not include a right to harass, and universities are obligated by Title VI to protect students against harassment on the basis of race, color or national origin, categories that encompass both antisemitism and Islamophobia.

Colleges are not obligated to respond perfectly. Courts recognize that schools will struggle to control the adult students and professors on campus. But according to federal precedent, universities cannot demonstrate deliberate indifference to harassment on campus. A school can be held liable if plaintiffs can prove that it “either did nothing or failed to take additional reasonable measures after it learned that its initial remedies were ineffective.”

Public universities must uphold the First Amendment and federal nondiscrimination law. Private universities that receive federal funding (which includes Harvard, M.I.T. and a vast majority of private universities) must protect students from antisemitic discrimination, but they also should protect free speech.

I do not envy university administrators. They are faced with the task of trying to protect free speech, even though members of Congress sometimes berate them for failing to censor expression that is clearly constitutionally protected. They’re obligated to enforce anti-discrimination law, even if enforcement angers protesters and activists on campus.

The intersection of free speech and harassment can be fraught and complex. There are times when universities inhibit free speech to prevent harassment, and there are times when universities wrongly permit harassment in the belief that they’re protecting free speech.

But there are ways to parse the difference. If an administrator receives a complaint that is primarily related to the content or viewpoint of the speech (“I don’t like what he said”), then in a vast majority of circumstances, the administrator has an obligation to protect the speech and to teach the student how to handle exposure to difficult or offensive ideas.

If, however, the complaint is related to conduct — like blocking access to class or making loud noises that prevent study or sleep — or is related to the time, place or manner of the speech (you can chant in the quad but not in the dorm at 3 a.m., or you can protest in the quad, but you can’t seize it so others are prevented from using the space), then universities often have to react. As these three cases make clear, the schools have no legal choice.

As the new school year approaches, it presents a second chance to do the right thing. Campus unrest has now cost three Ivy League presidents their jobs. The presidents of Harvard, the University of Pennsylvania and now Columbia University have resigned under pressure. And — as the decisions against Harvard and U.C.L.A. make clear — campus unrest may result in severe legal and financial penalties against universities that fail to maintain order or fail to protect speech.

We can certainly fault university administrators for their responses to campus unrest, but we can’t treat the students like children. Campus extremists are the ones who bear, by far, the most responsibility for disruption.

In his opinion dismissing the complaint against M.I.T., Stearns shares a poignant observation, one that universities should take to heart. “The transgressors,” he writes, “were, after all, mostly M.I.T. students whom the school (perhaps naïvely) thought had internalized the values of tolerance and respect for others — even those with whom one might disagree — that a modern liberal university education seeks to instill.”

There is no longer any excuse for this naïveté. Students have an obligation to respect the rights of others. Universities have a responsibility to protect those rights. Any other conclusion leads to chaos, causes confusion and exposes colleges to courtroom consequences.

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