When the Office for Civil Rights issued a letter this month reminding colleges that federal law bars discrimination on the basis of shared ancestry and ethnic characteristics, reactions ranged from celebration to concern.
Where some saw the letter as a sign that the U.S. Department of Education won’t tolerate the antisemitic incidents that have multiplied on campuses since the October 7 Hamas attack on Israel, others warned it could be used to justify a crackdown on protests that have criticized Israel’s response to the attack.
“This letter is a signal to colleges that OCR is very much open for business,” said Kenneth L. Marcus, a former assistant secretary of education for civil rights under President Trump and the founder of the Louis D. Brandeis Center for Human Rights Under Law. “It shows that it is actively pursuing antisemitism and other ethnoreligious cases.”
But Jonathan Feingold, an associate professor of law at Boston University, worries that the letter will legitimize what he sees as a “false narrative” that pro-Palestinian protests are driving the rise in antisemitism, and “provide cover” to universities that have been violating the rights of their students to peacefully protest. He views the letter as an attempt to appease advocates like Marcus, who have been pressing the department to include anti-Zionism in its definition of antisemitism.
The Education Department, for its part, framed the guidance as a response to a recent spike in federal discrimination complaints alleging antisemitism and Islamophobia at schools and colleges — an attempt to “provide clarity to the public regarding existing legal requirements.”
I don’t see the tricky questions being addressed here.
But does the letter really provide any clarity to college leaders wrestling with the difficult question of how to balance the free-speech rights of some students against the civil rights of others? Once again, it depends who you ask.
Though the federal guidance doesn’t break new legal ground, it does offer several hypothetical discrimination complaints that could help colleges apply existing law to the current context, attorneys and legal scholars said. It also breaks down the legal frameworks that courts and federal investigators use to evaluate discrimination complaints — frameworks that are well established, but not universally understood, the lawyers say.
Still, most of the letter’s examples are fairly clear-cut, addressing what many would consider obvious violations of Title VI of the Civil Rights Act of 1964, the federal law that bars discrimination based on race, color, or national origin. They don’t really answer the question of when offensive speech crosses the line into harassment — or when an attack on a country’s policies becomes an attack on its people.
“I don’t see the tricky questions being addressed here,” said Derek W. Black, a professor of law at the University of South Carolina. “Maybe it intentionally avoids the tricky questions.”
What the Letter Says — And Doesn’t Say
The Education Department’s May 7 letter, which came at the height of campus protests over the war in Gaza and amid blistering congressional hearings into colleges’ handling of antisemitic incidents, is the third “Dear Colleague” memo on the topic of shared-ancestry discrimination that the department has issued in the months following the Hamas attacks, and the most detailed to date. It is also the first to be labeled “significant guidance,” meaning that the Office for Civil Rights will take public comments on it and consider them in developing or modifying future guidance.
The timing of its release — seven months to the day after the Hamas attack, and on the same day that President Biden forcefully condemned antisemitism in higher education during a speech at the Holocaust Museum’s Annual Days of Remembrance ceremony — led some to assume that the letter was focused squarely on antisemitism.
But reading the letter, it’s clear that the department is addressing Islamophobia and anti-Palestinian racism, too. Of the nine hypothetical complaints the agency offers as guidance to colleges, four deal with the harassment of Arab and Muslim students.
Lina Assi, advocacy manager for Palestine Legal, an organization that aims to protect the civil and constitutional rights of people who advocate for Palestinian rights, called the letter a “significant advancement to remind universities of their legal obligations to address the rise of hostile anti-Palestinian environments that we’ve seen across campuses, as well as universities’ criminalization and repression of their own students.”
On many campuses that have experienced antiwar protests in recent months, administrators have struggled to distinguish between inflammatory speech that is protected under the First Amendment and speech that creates a hostile environment for a student or group of students. At what point, many have wondered, does anti-Zionist rhetoric veer into antisemitism?
The letter acknowledges this difficulty. It suggests that colleges consider whether criticism of a country “is targeted at or infused with discriminatory comments about persons from or associated with a particular country.” A professor teaching a course on international politics is free to criticize Israel, or any other country, so long as his or her comments don’t use offensive stereotypes to refer to students identified with those countries, it reads.
Therein lies an important distinction, which apparently limits what kind of criticism of Israel is permitted: A footnote cites an executive order issued at the tail end of the Trump administration that directed federal agencies to consider the non-legally binding definition of antisemitism issued by the International Holocaust Remembrance Alliance, and its accompanying examples, when evaluating discrimination claims. These examples include “the targeting of the state of Israel, conceived as a Jewish collectivity” and “claiming that the existence of a State of Israel is a racist endeavor.”
To Marcus, that citation, along with another that references a Q&A on the order, “clarify that this administration remains committed to President Trump’s executive order.”
Taken together, they show that the Alliance’s definition “is not something institutions can choose to adopt,” Marcus said, but a principle “that is woven into the regulatory fabric of the agency.”
Marcus and other Jewish advocates have been pushing Congress to pass a bill that would codify the Alliance’s definition — a move that Assi says would undermine free expression and “contribute to the rise of discrimination experienced by Palestinians for protesting their oppression.”
But the letter makes no explicit endorsement of the Alliance’s definition, and its reference to the Q&A serves to underscore its point that just because some students find certain speech offensive does not, by itself, prove a hostile environment exists.
The Consequences for Colleges
It’s difficult to say how many civil-rights complaints alleging discrimination on the basis of shared ancestry and ethnic characteristics have been filed since October 7, since the department doesn’t make that figure public. But a federal database of open investigations lists more than 70 cases under “national origin discrimination involving religion” at colleges dating back to mid-November.
If precedent holds, only a fraction of those cases will culminate in findings against a college and a formal resolution agreement. Some investigations will take years to complete. Between August 2019 and April 2023, only five colleges reached agreements with the Office for Civil Rights in cases alleging national origin discrimination involving religion, another database shows. All of the complaints involved Jewish and Israeli students.
Still, the sheer number of recent complaints, coupled with the letter’s promise to “vigorously enforce” Title VI, suggest that more colleges will be subject to federal scrutiny in the coming months.
Black, the South Carolina law professor, said it’s unlikely that colleges will be financially penalized for their actions (or their failure to act). Though federal law allows the Education Department to cut off an institution’s access to federal student aid for severe violations, its extremely rare for the agency to do so. After all, terminating a college’s funding would eliminate the leverage that the agency has over the institution and hurt students who rely on the aid. In most cases, investigators are simply “trying to secure future compliance.”
“They’re not about handing out damages — you can go to court for that,” he said.
In recent resolutions involving antisemitic incidents that took place at the University of North Carolina at Chapel Hill and Duke and New York Universities, the department required the colleges to issue statements condemning antisemitic harassment, update their nondiscrimination policies, expand training, and meet with students, faculty members, and staff annually to hear their concerns. A 2023 resolution involving the University of Vermont went a bit further, requiring additional corrective actions, but stopped short of financial penalties.
Even so, being the subject of a federal civil-rights investigation can cost colleges time and money — and cause reputational damage. For those reasons, and others, institutions should read the new guidance closely, said Amy Fabiano, a former OCR lawyer and college counsel who is now in private practice at Bowditch, a Boston-area law firm.
As things have escalated on campus, this guidance is really welcome.
While the examples the letter gives are “fairly straightforward,” and not as nuanced as the questions her clients have been raising, institutions may be able to “extrapolate from them to what’s going on on your campus,” she said.
“As things have escalated on campus, this guidance is really welcome,” Fabiano added.
But with recent cuts to diversity, equity, and inclusion programming and staff on many campuses, some colleges may find themselves without the resources to not only respond to a growing number of harassment complaints, but to prevent harassment from occurring in the first place, said Paulette Granberry Russell, president of the National Association of Diversity Officers in Higher Education.
“The concepts that we’re prohibited from addressing or including in training and development programs are the very areas of behaviors that can lead to Title VI violations,” she said.
‘A Little Light’
Mark Rotenberg, vice president for university initiatives at Hillel International and a former general counsel at the University of Minnesota and the Johns Hopkins University, said the department will probably never make it “100-percent clear” how colleges are to balance free speech and civil rights. But the letter does clarify that protected speech can contribute to a hostile environment, and that First Amendment rights don’t relieve a university of its responsibility to respond, Rotenberg said.
“I think many people in higher ed imagined that the targeting of Jewish students over the past several years — but particularly since October 7 — was just a lot of political rhetoric and that Jewish students simply needed to have tougher skin and bear with it,” Rotenberg said.
That has never been the case for other marginalized populations, such as LGBTQ and Black and Latino/a students, Rotenberg added. No one would argue that a white supremacist can say racist things about Black students without facing consequences from the college, he said.
“Most university administrators understood that picking on those students was improper and needed to be addressed and didn’t hide behind the fact that it was mere speech,” he said.
But Feingold, the Boston University professor, sees that comparison through a different lens. He recalled that when students of color and LGBTQ students began raising concerns about campus environments a decade or so ago, they were derided and dismissed by many on the right — as well as by some liberals and moderates in the mainstream media — as oversensitive snowflakes. Colleges were accused of coddling students, and there were calls for institutions to “double down on the marketplace of ideas.”
“There was a widespread mocking of this call for safe spaces, and the rhetoric of microaggressions,” Feingold said. “In those moments, when students were calling out hostile climates, the response was: If we take student feelings seriously, free speech is done.”
But now, concerns that the protests make some Jewish students feel unsafe have led to the idea that “student feelings should dictate policy,” he said.
Left unanswered by the letter is whether harassment based solely on speech can rise to the level of a civil-rights violation. All of the examples in the letter mix speech and conduct — name-calling with physical violence, for example. Will Creeley, legal director of the Foundation for Individual Rights and Expression, a free-speech advocacy group, considers that “a bit of an out.”
“Maybe OCR is saying speech alone is not enough — but they don’t come out and say that,” Creeley said.
For his part, Creeley would liked to have seen a little more of “do this, don’t do that” from the department. But he acknowledged that “maybe that’s an impossible task.”
“These situations are so shifting, so urgent and immediate, and fact-specific that its hard to write broad, general guidelines for how universities should respond,” he said. “Maybe a little light is better than none at all.”
