The Volokh Conspiracy

The article is here; the Introduction:

Since Hamas's October 7, 2023 attack on southern Israel, the start of the subsequent war in Gaza, and an outbreak of campus protests expressing vehement hostility to Israel, dozens of universities across the United States have faced lawsuits, administrative complaints, and federal investigations alleging dereliction of their Title VI duty to protect Jewish students from discrimination. These Title VI claims typically include allegations that universities have been deliberately indifferent to the way actions by anti-Israel protesters have created a severe and pervasive hostile environment for Jewish and Israeli students.

Public attention has focused on perceived hateful speech by anti-Israel protesters. This includes slogans seen as calling for the destruction of Israel (e.g., Arabic chants of "From River to the Sea, Palestine is Arab"); speech that is often interpreted as calls for violence against Israel, Jews, and their supporters (e.g., "Globalize the Intifada" and, in Arabic, "Khaybar Khaybar oh Jews, the army of Muhammad will return"); expressions of support for Hamas in general (e.g., "Glory to the Martyrs") and its October 7 crimes in particular (e.g., flyers that feature paragliders, glorifying the Hamas terrorists who massacred Israelis after flying into Israel on paragliders); and pro-Hamas events on October 7, 2024, the anniversary of the massacre.

Judicial decisions and scholarly commentary have tended to frame the Title VI claims primarily as conflicts over political expression of this sort by anti-Israel protesters. In late 2023, the federal Department of Education advised university officials that in the context of anti-Israel protests, constitutionally protected speech alone can create a hostile environment that universities are obligated to address, albeit without suppressing speech.

Much of the subsequent debate, in courts and otherwise, has been over whether rhetoric widely perceived as antisemitic or as endorsing violence in the abstract can ordinarily support hostile-environment liability without violating the First Amendment. Jewish students' claims should be rejected, some argue, as objections to rhetoric the students find deeply offensive but that is constitutionally protected. A recent attention-getting article asserted that Jewish students' claims may not ordinarily rely—even merely as evidence of an overall hostile campus climate—on campus protesters engaging in such incendiary rhetoric.

This Article argues that prevailing analyses of post-October 7 Title VI claims are incomplete and are often legally mistaken because they ignore or misinterpret a central element of hostile-environment doctrine: context. Hostile-environment law asks whether conduct is so severe, pervasive, and objectively offensive that it effectively denies students access to educational opportunities. This inquiry is contextual and depends on the "constellation of surrounding circumstances."

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A short excerpt from the long decision in Canel v. Art Institute of Chicago, decided yesterday by Judge Georgia Alexakis (N.D. Ill.):

The First Amendment often protects offensive, hateful speech. As the Supreme Court has explained: "[P]reventing speech expressing ideas that offend … strikes at the heart of the First Amendment." It continued: "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate." In the university setting, the Supreme Court has stressed that First Amendment protections are especially "[v]ital." See Rosenberger v. Rector & Visitors of Univ. of Va. (1995) ("For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its college and university campuses."); Healy v. James (1972) (First Amendment protection "is nowhere more vital than in the community of American schools … The college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom.").

In balancing Title VI's prohibition of harassment against the First Amendment's protection of speech, courts distinguish between speech on matters of public concern "directed to the community at large through generally accepted methods of communication" and speech that constitutes "targeted, personal harassment" aimed at a particular individual or group of individuals. See Gartenberg v. Cooper Union (S.D.N.Y. 2025); Landau v. Corp. of Haverford College (E.D. Pa. 2025); see also Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) (analyzing the intersection of the First Amendment and a Title VII hostile environment claim and expressing "doubt that a college professor's expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment")….

The events Canel describes in her second amended complaint—even after being read in the light most favorable to her and with all reasonable inferences drawn in her favor—… represent instances of speech on matters of public concern "directed to the community at large through generally accepted methods of communication." Canel points to flyers criticizing SAIC's response to the Israeli-Palestinian conflict and resulting discourse that were thumbtacked in a school hallway. She alleges that students and faculty—herself included—exchanged open letters and petitions sharing their views on the conflict. She describes various social media posts, inviting SAIC students to protests, utilizing slogans associated with the Israeli-Palestinian conflict, and depicting posters and signs containing the same. She alleges that students conducted a "walkout," protesting on public streets and chanting slogans using similar language….

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