The Volokh Conspiracy
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Zionism and Title VI
How campus antidiscrimination law might apply to campus protests.
I've recently posted on SSRN a new essay, "Zionism and Title VI," forthcoming in the Harvard Law Review Forum. HLR had asked me to respond to an essay by Professors Ben Eidelson and Deborah Hellman, applying Title VI's antidiscrimination rules to recent campus protests. Here's the SSRN abstract of my draft paper:
Universities across America have been accused of failing to protect their Jewish and Israeli students by failing to enforce their own rules on campus protests. Under Title VI of the Civil Rights Act, no one may be excluded from participation in a federally funded activity on the ground of race or national origin. Yet while some protests have allegedly targeted Jews or Israelis for exclusion from campus spaces, more are alleged to have targeted Zionists, those who support a national home for the Jewish people.
A recent essay by Professors Benjamin Eidelson and Deborah Hellman raises doubts about the statutory basis for many such claims. This Response argues that Title VI may apply more extensively to university anti-Zionism than the authors maintain. If made a condition of full participation in university life, anti-Zionism is a form of national-origin discrimination, creating a hostile environment for Israelis forced to abjure their national origin or Jews forced to abjure their nationhood. Israel is the Jewish state in the same ordinary sense in which Greece is the Greek state or Czechia the Czech state; "anti-Hellasist" or "anti-Czechist" restrictions would create hostile environments in just the same way, and the doctrinal arguments for these "untargeted" hostile-environment claims seem stronger than the authors suggest. When a university abandons its ordinary rules, moreover—ceding to a protest movement the authority to deny access to campus spaces or resources—it bears greater responsibility for that movement's actions and renders more menacing that movement's demands.
The Response concludes by noting that even when Title VI is silent, or even when free-speech doctrines might insulate violent slogans or student-group expulsions, the legal questions don't exhaust the moral ones. The campus anti-Zionist movement needn't be classified as antisemitism in law for it to be antisemitic in fact.
And from the introduction:
After the attack on Israel of October 7, 2023, a new protest movement erupted on America's campuses. Unlike the protests of previous decades, these protests were explicitly focused on Zionism, the movement for a Jewish national home in Israel. Rather than merely demand a Palestinian state or an end to the current war, they featured such chants as "Settlers, settlers, go back home, Palestine is ours alone," or (in Arabic) "From water to water, Palestine is Arab"—better known by the English slogan "from the river to the sea." Messages such as "Zionists not allowed," posted in the Multicultural Center of the University of California–Santa Barbara, or "Zionists not welcome here," chanted outside Hillary Clinton's class at Columbia or the Harvard Hillel, personalized a conflict unfolding thousands of miles away. So did the occasional expulsion of Zionist students from membership in campus student groups.
Both the federal government and private plaintiffs accused universities of failing to protect their Jewish or Israeli students, faculty, or staff. The University of California–Los Angeles, for example, was accused of letting protesters deny passage through campus to all those unwilling to denounce Zionism, with university personnel on hand to direct them another way. This was said to violate Title VI of the Civil Rights Act of 1964, section 601 of which provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
Professors Benjamin Eidelson and Deborah Hellman raise doubts about the basis of many such claims. Their argument can be read as threefold. First, Judaism is a religion, yet § 601 doesn't forbid religious discrimination—only discrimination on the grounds of race, color, or national origin. It doesn't protect the religious beliefs of Jews any more than those of Muslims or of Christians. To the extent that Zionism is a political view or "religious conviction" about the land of Israel, one that happens to be held by many ethnic Jews, it isn't an aspect of race (in the sense of "ancestry or ethnic characteristics"), but of "race-associated cultural practices" (akin to "wearing braids, locks, or cornrows"). If requiring students to accept Jesus as their personal savior wouldn't violate Title VI, the argument might go, neither would requiring them to reject a Jewish national home in Israel—let alone failing to intervene when protest groups do the same.
Second, the authors argue, a highly plausible reading of current doctrine construes § 601 to reach only "intentional discrimination," the deliberate targeting on forbidden grounds of specific individuals or groups. A classroom in which a teacher describes the Holocaust as a "fantastic lie," accuses Israel of the 9/11 attacks, and so on, might be "offensive and alienating" to Jewish students (and others); so too if students are spreading conspiracies and the teacher "shrugs it off." But if no one "intentionally treat[s] racially Jewish students differently," perhaps because no one realizes there are "any Jewish students in the class," this seemingly hostile environment has a disparate impact on Jews outside the scope of § 601. (The teacher might be delighted to find Jews in her class, to whom she can also teach about Jewish perfidy; she treats her students the same way regardless, so how can she be discriminating?) Indeed, "'Zionist-free' areas on campus" arguably needn't discriminate by race or national origin, as long as they sincerely and without pretext or prejudgment admit anyone willing to denounce a Jewish state. With their schools immune from private lawsuits, such Zionist-free zones could be challenged only by agency enforcement of disparate-impact regulations under another provision, section 602 —regulations that may be "on shaky legal footing" and which the current Administration has pledged to repeal.
Third, the authors argue, because universities are regularly home to vigorous free speech, student perceptions of an actionably hostile environment will often be unreasonable—involving conduct to which students reasonably take offense, but from which no student "could reasonably expect to be shielded." To qualify as discrimination under Title VI (or the similar Title XI), a "hostile environment" has to be more than just an environment that's hostile: it has to be "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit," and the institution has to react with "deliberate indifference." If masked crowds occupy campus to chant "globalize the intifada" (or, perhaps, "Jews Will Not Replace Us"?), that's life in the big city—something that "could not ordinarily contribute to a hostile environment under Title VI." Students are entitled to their political beliefs, and merely expressing those beliefs, with First Amendment protection and without any threat of "imminent lawless action," can't be "'severely' and 'objectively' offensive" under the statute—unless it "can only reasonably be understood as malicious" (chosen specifically for its offensiveness), and maybe not even then. Excluding Zionists from student groups might qualify, but only if the excluders are reasonably seen as too willing to accept the removal of most Jews "from diverse aspects of campus life."
The authors are careful scholars and their Essay a careful work. Yet their measured tone undersells both the extremism of the current protest movement and the implications of these statutory claims. While the merits of each lawsuit turn on the details of each campus, the current movement's focus on Zionism hasn't rendered Title VI obsolete.
Made a condition of full participation in university life, anti-Zionism is a form of national-origin discrimination: it creates a hostile environment for Israelis forced to abjure their national origin or Jews forced to abjure their nationhood. The authors acknowledge that many Israelis and Jews are Zionists, but they say little about why, and this matters for how one applies Title VI. Anti-Zionism doesn't merely contravene some religious or political belief common among Israelis; it denies that there should be "Israelis," calling for the abolition of a specifically Israeli nationality. And it implicates not just Jews' religious beliefs about the land of Israel, but their membership in the Jewish people: the nation of Israel, of which the State of Israel is the associated nation-state. Israel is the Jewish state, the "national home for the Jewish people," in the same ordinary sense in which Greece is the Greek state or Czechia the Czech state. Ethnic Greeks living elsewhere need neither hold passports from the Hellenic Republic, feel any affinity for the country of Greece, nor approve of its history, policies, or government; they're perfectly free to live out their lives while paying no attention to Greece. But a university's insistence on an "anti-Hellasist" renunciation of a Greek state—or on a similar renunciation of a Jewish or a Palestinian state—might still violate Title VI.
Such a university couldn't easily escape liability by making the same demands of everyone. The doctrinal arguments against "untargeted" hostile environments aren't as great an obstacle as the authors suggest, and a world without them would be quite different from what most people expect. If the narrower reading of Title VI (and Title IX) were correct, then a university that sponsored nightly cross-burnings and White Power rallies, plastered each dorm room with woman-degrading pornography, and forced everyone entering a classroom to stomp on a Greek flag and kiss a Turkish one (or vice versa) still might not, on the ground of race, sex, or national origin, have intentionally excluded anyone from participation in, denied them the benefits of, or subjected them to discrimination under its programming. Perhaps this reading is correct; but a fair number of courts have disagreed with it, and those rejecting "untargeted" hostile-environment claims should know what they've signed up for.
Nor can a university pass the buck to protesters, chalking up its hostile educational environment to the give-and-take of campus life. When a university abandons its ordinary rules, ceding to a protest movement the authority to deny access to campus spaces and resources, it bears greater responsibility for that movement's actions and renders more menacing that movement's demands. Jewish and Israeli students who might try to ignore slogans for their ethnic cleansing on the quad might not be able to ignore them when chanted in the library or spraypainted on its windows, and when the university reacts with deliberate indifference. And if almost all First-Amendment-protected speech were nonactionable under Title VI, then hostile-environment law might (again) be far more limited than many expect—letting student Klan chapters call for "revengeance" and for black Americans to "be returned to Africa" (as in Brandenburg v. Ohio), let alone for the exclusion of Zionists. The authors' softened description of the current protest movement's comfort with violence is ultimately fruitless, as the movement's far more explicit statements (say, "Zionists don't deserve to live") might, on the arguments presented, receive precisely the same treatment.
These free-speech considerations serve as an important reminder of the limits of how much law can do. However one reads Title VI, it may be that a student Klan chapter has a legal right to do a moral wrong. Whether anti-Zionism counts as antisemitism in law is thus a distinct question from whether it's antisemitic in fact. Today's antisemitism is less a religious prejudice or a racial bias than a conspiracy theory, an excessive willingness to believe that Jews and Israel are up to no good—whether it's that Jews control the media, that "Israel did 9/11," or that "Jews created the plague by poisoning wells." One reason the current protest movement might strike many Jews and Israelis as threatening is if they believe its factual claims aren't true, and that these claims wouldn't be so widely believed but for an undue suspicion of Jews. Such questions are of course matters of deep controversy, "enmeshed with hotly disputed views about world affairs." A federal court might not be able to say, as a finding of fact, that labeling either Zionism or Israel's current war as "genocidal" is another such conspiracy theory (or, indeed, a blood libel). Nor perhaps might it resolve, amid litigation, whether these allegations seem so uniquely urgent to so many out of a generalized or unconscious dislike, disregard, or just unfair distrust of Israelis or Jews. But whether courts can say so or not, it still might be true.
A useful exchange, I hope; comments welcome!
(cross-posted to Divided Argument)
