The Volokh Conspiracy
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"Title VI Must Be Applied Consistent with First Amendment Principles"
A federal district court discusses how the First Amendment limits liability for "hostile environment harassment" based on "speech on matters of public concern" in universities (public or private). And the reasoning may extend to Title VII liability on workplaces as well.
An excerpt from Judge John Cronan's long decision today in Gartenberg v. Cooper Union (S.D.N.Y.) (I expect to blog more later about other facets of the case [UPDATE: see this post]); note that the court's logic applies to Title VII liability in workplaces as well, especially since it cites precedents and articles that focus on Title VII:
Title VI makes it unlawful for institutions that receive federal funding to discriminate against participants in their programs on account of race, color, or national origin. In the educational context, actionable discrimination includes an institution's "deliberate indifference" to known instances of student-on-student harassment that are "'severe, pervasive, and objectively offensive' and discriminatory in effect." …
Title VI Must Be Applied Consistent with First Amendment Principles, Even When the Defendant is a Private Institution.
At the outset, Cooper Union maintains that Gartenberg's hostile environment claims are based largely on protected political speech by pro-Palestinian members of its community, and are therefore foreclosed by the First Amendment. Indeed, Gartenberg's Complaint—which alleges liability predicated, in part, on a demonstration on a public sidewalk concerning the Israeli-Palestinian conflict, the distribution of fliers supporting the Palestinian cause, a controversial "art display" advocating violent resistance to "colonialism," and a speech given by Dr. Bartov about the Holocaust—is "rife … with [F]irst [A]mendment overtones." DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995).
Gartenberg responds that the First Amendment has no relevance to her hostile environment claims. Gartenberg contends that Cooper Union is a private institution and that "[i]n contrast to students at public or state institutions, students at private colleges do not enjoy First Amendment protections." Going on, Gartenberg argues that regardless of whether Cooper Union is itself bound by the First Amendment, it would "still have the authority under the U.S. Constitution, and a responsibility under Title VI, to punish students who harass their Jewish peers on campus and thereby interfere with the victims' ability to participate in school activities."
Gartenberg's argument is unpersuasive.
A statute that burdens protected speech must comport with the First Amendment regardless of whether it does so directly, such as by prohibiting certain speech outright, or indirectly, such as by requiring a court adjudicating a "civil lawsuit between private parties" to apply a rule of law that has the effect of "impos[ing] invalid restrictions on [the defendant's] constitutional freedom[] of speech." N.Y. Times Co. v. Sullivan (1964); see also Kingsley R. Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment, 52 Ohio St. L.J. 481, 510-11 (1991) ("Although the primary method of enforcement of the harassment prohibition is through civil actions between private parties, imposition of liability by the courts under federal and state statutes easily falls within the definition of 'state action.'"). And as relevant here, requiring schools to censor or punish political speech to avoid liability for a hostile environment would burden not only their students' freedom of expression, but the academic freedom of the institution itself to create an educational environment centered around the free exchange of ideas. See Dube v. State Univ. of N.Y. (2d Cir. 1990) ("[F]or decades it has been clearly established that the First Amendment tolerates neither laws nor other means of coercion, persuasion or intimidation 'that cast a pall of orthodoxy' over the free exchange of ideas in the classroom.").
That a private institution like Cooper Union is generally free to regulate its students' speech without regard for the First Amendment, therefore, is irrelevant to the question of whether Congress may compel it to do so via the threat of civil liability under Title VI. See Yelling v. St. Vincent's Health Sys. (11th Cir. 2023) (Brasher, J., concurring) ("Although a private [institution] can adopt a speech code if it wants, the government usually cannot force people to speak in a particular way."); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 U.C.L.A. L. Rev. 1791, 1817 (1992) ("The government cannot escape First Amendment scrutiny for its speech restriction by forcing someone else, on pain of liability, to implement that restriction.").
In addition, if a given interpretation of a statute "would raise a multitude of constitutional problems" when applied in one context, a court must consider those issues regardless of "whether or not those constitutional problems pertain to the particular litigant before the Court." Title VI, contrary to Gartenberg's suggestion, is not "a chameleon, its meaning subject to change depending on" whether the defendant is private or public institution. The Court therefore cannot ignore the constitutional problems that would inevitably arise in the context of public universities—which, unlike Cooper Union, must respect their students' First Amendment rights—if Title VI required the suppression of core political speech.
Accordingly, the Court must confront the merits of Cooper Union's First Amendment defense. Imposing civil liability on institutions based on their failure to censor or punish offensive speech raises significant constitutional concerns. The First Amendment embodies "the fundamental principle that governments have 'no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Yet "a disparaging comment directed at an individual's sex, race, or some other personal characteristic has the potential to create an 'hostile environment'—and thus come within the ambit of anti-discrimination laws—precisely because of its sensitive subject matter and because of the odious viewpoint it expresses." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001) (Alito, J.); see also DeAngelis (explaining that when a hostile environment claim is "founded solely on verbal insults, pictorial or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech"). Thus, the federal anti-discrimination laws arguably "impose special prohibitions on those speakers who express views on disfavored subjects" by effectively requiring institutions to censor and punish at least some offensive speech concerning matters of race, sex, and other personal characteristics. R.A.V. v. City of St. Paul (1992); see, e.g., Volokh, supra, at 1854-55 ("One person in the lunch room may speak eloquently and loudly about how women are equal to men, and harassment law will not stop him. But when another tries to respond that women are inferior—belong in the home, are unreliable during their menstrual periods, or should not be allowed on the police force—harassment law steps in.").
In part because harassment claims are rarely based on pure political speech, however, few courts have had occasion to address what limits, if any, the First Amendment places on federal anti-discrimination law. But under the Supreme Court's usual First Amendment jurisprudence, a statute that "favors one viewpoint about [a topic] over the other … must satisfy strict scrutiny," meaning that Congress must adopt "the least restrictive means of achieving a compelling state interest." Plus, speech on matters of "public concern"—expression that "can 'be fairly considered as relating to any matter of political, social, or other concern to the community'"—is "entitled to 'special protection' under the First Amendment" and generally "cannot be restricted simply because it is upsetting or arouses contempt." Snyder v. Phelps (2011).
It is also far from clear that most offensive speech that is regularly swept up in harassment cases would fit within the narrow sphere of traditionally recognized categories of unprotected expression, such as the exceptions for incitement, fighting words, true threats, and obscenity. Indeed, "courts have never embraced a categorical 'harassment exception' from First Amendment protection for speech that is within the ambit of federal anti-discrimination laws." Saxe; see also Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) ("Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment."). For these reasons, one leading treatise on the First Amendment teaches that "in the rare case in which the particular speech at issue does qualify [as expression on a matter of public concern], the [institution] should be exempted from liability" for a hostile environment. Rodney A. Smolla & Melville B. Nimmer, Smolla & Nimmer on Freedom of Speech § 13:17 (2024).
On the other hand, there is no question that the elimination of discriminatory harassment in employment and in programs receiving federal funding is a compelling government interest. Saxe. And as decades of judicial experience have made all too clear, abusive speech, no less than abusive conduct, can readily slam shut the doors to the workplace or seal the schoolhouse gates. So just as federal anti-discrimination law must provide some breathing space for contentious political expression if First Amendment rights are to survive, the Constitution must tolerate the regulation of at least some offensive speech if the Civil Rights Act is to achieve its promise of unlocking the benefits of employment and education for all Americans. See Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 Sup. Ct. Rev. 1, 48 (1994) ("[P]olitical democracy requires a broad space for unrestricted public discourse, but that space need not be boundless." (internal quotation marks omitted)). And there may yet be a doctrinal basis for regulating offensive speech more closely in those contexts. See Wisconsin v. Mitchell (1993) (citing Title VII "as an example of a permissible content- neutral regulation of conduct"); Avis Rent A Car Sys., Inc. v. Aguilar (2000) (Thomas, J., dissenting from denial of certiorari) (discussing the public-employee-speech and captive-audience doctrines).
Finally, the Court notes that the First Amendment concerns described above cannot be brushed aside in the Title VI context merely because Congress enacted the statute pursuant to its power under the Spending Clause. Because compliance with Title VI (unlike compliance with Title VII and other "mandatory" anti-discrimination statutes) is only required for institutions that voluntarily accept federal funding, one might take the position that to the extent a college or university objects to the First Amendment implications of the statute, its recourse is simply to stop accepting federal education funds. Congress, however, "may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech even if he has no entitlement to that benefit." Under that principle, known as the "unconstitutional conditions doctrine," a condition imposed in connection with a grant of federal funding would be unconstitutional if Congress could not impose that condition through direct legislation. Accordingly, the fact that an institution could escape Title VI's requirements by declining federal funds does not, by itself, obviate the First Amendment implications of construing Title VI to require censorship of political speech.
The Court Does Not Construe Title VI as Reaching Pure Speech on Matters of Public Concern.
In light of the competing interests described above, courts have emphasized the need to "exercise special caution when applying [anti-discrimination law] to matters involving traditionally protected areas of speech." Honeyfund.com Inc. v. Governor (11th Cir. 2024); see also DeAngelis ("Where pure expression is involved, [anti-discrimination law] steers into the territory of the First Amendment."). And the responsibility of courts to tread lightly when political speech is in the legal crosshairs is particularly important in the context of higher education.
Following that careful approach, the Court concludes that because interpreting Title VI to impose liability for a hostile environment created in part by pure speech on matters of public concern would cast significant doubt on the statute's constitutionality, the Court must adopt a permissible construction of Title VI that avoids placing its application in First Amendment jeopardy…. As relevant to the elements of Gartenberg's Title VI claim that are at issue in this case, three guiding principles emerge that avoid a collision between the First Amendment and anti-discrimination law while still allowing the statute to function effectively.
First, speech "on a matter of public concern, directed to the college community," will generally fail to "constitute unlawful harassment." Rodriguez. This approach is consistent with the objective standard that courts use to assess the hostility element of federal harassment claims: a reasonable person should understand that speech on matters of public concern, directed to the community at large through generally accepted methods of communication, is very different than targeted, personal harassment aimed at a particular person. See Yelling (Brasher, J., concurring) (explaining that "speech on public matters is inherently less likely to create a hostile [] environment than speech on private matters"); DeAngelis (declining to find a hostile work environment based on a series of satirical columns published in a police union's newsletter that "derogatorily referred to policewomen"). The principle underlying this approach is that a reasonable person should distinguish between the abstract expression of offensive "values, politics, and attitudes" on the one hand, and "remarks that genuinely target and harass" individuals on the other. Smolla & Nimmer, supra § 13:17; see also Volokh, supra, at 1871 (distinguishing between offensive speech directed at particular individuals in a targeted manner and speech that is not so directed). This is especially true in the context of higher education, where the reasonable student expects (if not hopes) to encounter "rigorous debate and discussion, and the unfettered exchange of ideas" concerning a wide range of controversial topics. Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 J.C. & U.L. 385, 386 (2009).
And by the same token, a reasonable person should perceive offensive political speech communicated through generally accepted means (say, during a debate in the breakroom or in a flier pinned to a bulletin board) differently to offensive messages conveyed in a manner that does not conform to reasonable social expectations (for instance, by vandalizing a hallway). The former is much more likely to be received as good-faith discourse; the latter as an effort to harass, intimidate, or discriminate. Cf. Fallon, supra, at 47 (explaining that the First Amendment should protect "speech or expressive conduct that is reasonably designed or intended to contribute to reasoned debate on issues of public concern" (internal quotation marks omitted)). And on the other side of the equation, restricting the former is far more likely to burden legitimate expressive activity than restricting the latter.
Limiting anti-discrimination statutes like Title VI in this manner does not, however, mean that courts must "fall for the glib assertion that because matters of race and gender are, at the broadest level of abstraction, clearly issues of public concern, all racist and sexist remarks automatically qualify" for First Amendment protection. Applying federal anti-discrimination law consistent with First Amendment principles does not, in other words, require courts to shield all "derogatory epithets" of marginal value or to protect speech "even about political matters, that is so persistent or patently harassing that it could not be reasonably designed to contribute to reasoned debate." Fallon, supra, at 47. To be sure, political speech need not match the caliber of expression associated "with Marcus Cicero or Henry Clay" to receive constitutional protection, Yelling (Brasher, J., concurring), but neither does the First Amendment demand that low-value speech of the sort "that can give an abusive character even to political discussion" be protected in all contexts. And as noted, the way in which a message is communicated can matter just as much to its harassing character as what is said.
At the end of the day, what is important is that the law provide sufficient "breathing space for First Amendment freedoms." Accordingly, the Court does not construe Title VI as allowing for liability based on speech that is reasonably designed or intended to contribute to debate on matters of public concern, and that is expressed through generally accepted methods of communication.
Second, the need to avoid a collision between Title VI and the First Amendment counsels in favor of an even more limited application of the already strict deliberate indifference standard. Under that standard, an institution may only be held liable when its response (or lack thereof) to known instances of student-on-student harassment was "clearly unreasonable in light of the known circumstances." It is "axiomatic," however, that "the government may not silence speech because the ideas it promotes are thought to be offensive." Rodriguez. Nor may it conscript private institutions to act as censors by dangling the threat of civil liability for a hostile environment. That is nowhere truer than in the educational context, where "the Supreme Court's academic-freedom jurisprudence principally protects the 'marketplace of ideas' in the university and prevents government intrusion."
The First Amendment therefore "demands substantial deference to [a] college's decision not to take action against" students who engage in expressive activity on matters of public concern and instead requires courts to "defer to colleges' decisions to err on the side of academic freedom." For these reasons, it will usually be difficult—if not impossible—to show that a college or university acted in a clearly unreasonable manner under Title VI where its acts of alleged deliberate indifference consist of its refusal to punish political speech directed at the college community through reasonable means.
Finally, construing Title VI not to reach instances of pure speech on matters of public concern, or an institution's failure to censor or punish the same, does not mean that such expression is irrelevant to determining whether actionable harassment occurred. To make out a hostile environment claim, a plaintiff must plead (and then prove) not only that they suffered objectively severe or pervasive harassment, but that the harassment was motivated, at least in part, by a protected characteristic. And courts have long recognized that there is "no constitutional problem with using … offensive speech as evidence of motive or intent." Saxe; Mitchell (explaining that the First Amendment does not preclude evidence of discriminatory motive under the federal anti-discrimination statutes).
So for example, evidence that a white student attended a Ku Klux Klan rally, though protected expression or association in and of itself, may properly be considered in determining whether unprotected harassing conduct directed at his African-American classmates was motivated by race. See Dawson v. Delaware (1992) ("[T]he Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations … simply because those beliefs and associations are protected by the First Amendment."). Accordingly, when a hostile environment claim is based on both protected speech and unprotected conduct, a court must still consider the entire record in determining whether the harassment was discriminatory in nature.
This strikes me as generally a sound and important analysis, and one that's likely to be highly influential. I don't entirely agree with it on all points, but I think that on balance it's a major step forward in this area of the law.
UPDATE: Here's how the court applies the reasoning above to particular allegations by the plaintiffs:
As foreshadowed above, many of the alleged instances of harassment detailed in Gartenberg's Complaint are examples of pure speech on matters of public concern. For instance, Gartenberg alleges that on October 25, 2023, pro-Palestinian students demonstrated on the sidewalk adjacent to the Foundation Building and chanted slogans concerning the Israeli-Palestinian conflict. Gartenberg also points to fliers that were distributed around the Cooper Union campus inviting students to "[c]elebrate the 36th anniversary of the First Intifada" and to a vigil hosted by Cooper Union's SJP chapter to "grieve and honor all those killed by decades of Israeli occupation and imperial violence."
Similarly, she points to articles in Cooper Union's student-run newspaper by the MSA and the BSU disputing Jewish students' account of the library incident and criticizing "the conflation of Zionism and Judaism" as "manipulative, exploitive, and racist"; an alumni letter that "attempted to justify the sickening Hamas attack of October 7"; an "art display" that included the words "RESIST COLONIALISM FROM THE BRONX TO PALESTINE 'BY ANY MEANS NECESSARY'"; and Cooper Union "requiring all students, including Jewish students, taking a core Humanities and Social Sciences class to attend a speech titled 'The Never Again Syndrome: Uses and Misuses of Holocaust Memory and the Weaponization of Language' by anti-Israel activist, Omer Bartov."
Regardless of whether this expression is better characterized as righteous protest in support of a noble cause, as the vulgar celebration of terrorism and antisemitism, or as something in-between, it is not a proper basis on which to impose civil liability on Cooper Union. The content of the protest slogans, fliers, and other expressions described above related to the ongoing Israeli-Palestinian conflict and touched upon topics like Zionism, colonialism, and racism.
Gartenberg's Complaint offers no factual support for its assertion that any of these messages were intended to target particular Jewish students, as opposed to efforts to communicate a political message to the Cooper Union community at large. And apart from a conclusory suggestion that this speech included "threats of violence," the Complaint does not plausibly allege that any of this expressive conduct constituted true threats, incitement, fighting words, obscenity, or any other category of traditionally unprotected speech under the Supreme Court's First Amendment jurisprudence.
To the contrary, as described in the Complaint, this expression qualifies as pure speech on matters of public concern because "it can be fairly considered as relating to [a] matter of political, social, or other concern to the community" and was communicated in a manner reasonably calculated to contribute to an ongoing public debate of considerable political significance. Accordingly, while some of this speech may properly be considered for purposes of Title VI's discriminatory-intent element, it cannot itself support a claim for an objectively hostile educational environment under this Court's interpretation of the statute.
