First Amendment Precludes Title VI Liability for Harsh Anti-Israel Speech at Art Institute of Chicago

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….

Canel does not allege any vandalism, defacement, or targeted harassment of Jewish or Israeli students. Her allegations concerning the protest in the museum garden are the closest she comes to making allegations about activity that "lack[ ] the degree of legitimate expressive purpose that might merit the kind of First Amendment protection that has long been recognized in the academic arena." And yet, for the reasons that immediately follow, even those allegations do not permit her to prevail on SAIC's motion.

In the body of her complaint, Canel describes a "violent student mob," but she then directs the Court to a news article reporting that only some of the demonstrators were SAIC students. Then, in the body of her complaint, she alleges that the "student protesters violently forced museum officers out of the Art Institute Museum's garden, assaulted them, stole their master keys, and blocked and barricaded fire exits." The full extent of her allegations, though, paint a less volatile scene. The underlying source material provides: "[S]ome protesters 'surrounded and shoved a security officer and stole their keys to the museum, blocked emergency exits and barricaded gates.'" Canel never alleges that SAIC students in the museum garden targeted Jewish students, unlike the student mob in Gartenberg that descended upon the school library's, where students wearing "visibly Jewish" attire had congregated. And unlike the Gartenberg plaintiffs, Canel does not allege that SAIC failed to respond to the protesters, or that the protesters escaped discipline…. [P]rotesters who resisted requests to vacate the garden were arrested and charged with trespassing within two hours ….

Reasonable people may certainly disagree as to whether the activity that Canel describes in her complaint constitutes "righteous protest in support of a noble cause," "the vulgar celebration of terrorism and antisemitism," or "something in-between." But the activity was not violent, physically or personally threatening, or targeted to Jewish or Israeli students …. It did not involve defacement or vandalism. It was speech on a matter that has generated significant public concern, directed at the SAIC community through flyers, posters, posts, petitions, and protests. Just as Congress cannot punish protesters for such expression without running afoul of the First Amendment, nor can Congress, through Title VI, punish SAIC for its failure to do the same.

{Nor, for that matter, could SAIC be held liable under Title VI for its failure to adopt and convey certain viewpoints. "Title VI is not a portal for students to litigate their general dissatisfaction with the conduct of administrators or to advance their view of how contentious issues should be handled on campus." Instead, "[i]t sets an exacting standard for what constitutes a sufficiently hostile environment to justify imposition of civil liability" and does not permit "a court to hold a college administrator liable for failing to convey a specific message that students would have liked to see."} …

[Likewise, w]hen it comes to the deliberate indifference standards, Title VI again lies in tension with the Constitution. Courts must grant "substantial deference to a college's decision not to take action against students who engage in expressive activity on matters of public concern" and must "defer to colleges' decisions to err on the side of academic freedom." …

Canel has not alleged that SAIC reacted with deliberate indifference to the protest in the museum garden. Rather, she alleges that once it learned of the museum garden protest, SAIC acted "quickly and reasonably" by contacting the police; attempted a peaceful negotiation; and, when those efforts failed after two hours, allowed the police to arrest the remaining protesters. That SAIC attempted, as an unsuccessful negotiation tool, to encourage student-protesters to comply by offering immunity from academic sanctions is not clearly unreasonable, id., "clearly lacking in reason" or "overtly hostile." Rather, the rejected offer of academic sanctions was well within SAIC's province as a college to "err on the side of academic freedom." …

Here's an excerpt from Canel's factual allegations relevant to the particular claim discussed above:

The complaint points to the following conduct in the Fall 2023 semester:

• Within one week of the October 7, 2023 attack, protests began on SAIC's campus, featuring signs stating "from the river to the sea, Palestine will be free," and "resistance is justified when people are occupied," with the phrase "#AlAqsaFlood" written beneath.
• On October 17, 2023, more than 100 SAIC faculty members wrote an open letter to SAIC students that referred to "Israeli settlers," described Zionism as "a political ideology predicated on colonial theft and destruction," expressed an understanding that "Palestinian homelands are Indigenous lands," and expressed "uncompromising solidarity with the Palestinian people in their righteous struggle for self-determination." {The petition also expressed, among other sentiments, "a profound sense of grief over the Palestinian and Israeli lives that have been lost, and the staggering number of women, children, and elderly who've been critically wounded both in the past week and over the past 75 years," and that its authors were "horrified to bear witness to the violence of the Hamas attacks on Israeli settlers."}
• Around the same time, then-SAIC Professor Mika Tosca posted on her personal Instagram page that "Israelis are pigs. Savages. Very very bad people. Irredeemable excrement … May they all rot in hell." Tosca was not Canel's professor.
• On November 2, 2023, many SAIC students, led by Students for Palestinian Liberation ("SPL"), conducted a "walkout." Canel observed the walkout via social media as participants chanted "from the river to the sea, Palestine will be free." The same slogan appeared on stickers distributed to walkout participants.
• The next day, SAIC's President and Acting Provost emailed the entire SAIC community concerning the "unsanctioned gathering." As quoted in the complaint, the email noted that "some of the language used at the event disturbed the equilibrium of some community members"; stated that "SAIC condemns the hatred of any person based on religion, country of origin, or any other aspect of their identity"; and "denounce[d] both anti-Semitism and anti-Muslim sentiment and harassment." The full version of the email continued: "That means we ought to avoid inflammatory rhetoric or the disparagement of the peers with whom we disagree. I urge everyone to work toward an inclusive campus in their words and actions."
• On November 14, 2023, a group of SAIC students circulated a letter titled "FREE PALESTINE: Letter Regarding Palestine to the Art Therapy Department from MAATC Students." {"MAATC" refers to SAIC's Masters of Arts in Art Therapy and Counseling program, which is the program in which Canel was enrolled.} As Canel describes the letter, it called for "naming the difference between anti-semitism versus anti-zionism," did not mention the October 7, 2023 terrorist attack, referred to Israel as a "settler colonial" state, complained that SAIC accepted donations from the Crown family and claimed the Crown family derived their wealth from an ownership stake in a weapons-contracting company. Members of the Crown family are Jewish.
• Around that same time, flyers were hung in the Art Therapy Department hallway that called upon faculty and community members to boycott SAIC's "Programs to Address Violence in Israel and Palestine," as mentioned in the President and Acting Provost's November 3, 2023 letter. The flyer urged SAIC to "[c]ut ties with the Crowns." The poster also included a QR code. When scanned and followed, the QR code led to "resources compiled by the SPL." Those "resources" included an essay by Malcolm X titled "Zionist Logic"; materials "depicting how violence has been used in liberation from colonizers"; and instructions to "follow and share updates" from groups including a group called "Within Our Lifetime," which supports "resistance by any means necessary."

Owing to these events and SAIC's failure to "assure her safety or that she would be free from the harassment she faced on campus and in the classroom," Canel asked to conduct her Spring 2024 semester remotely, with one-on-one tutors. SAIC accommodated this request. Canel alleges the following hostile conduct occurred on or around SAIC's campus during her remote semester:

• On January 19, 2024, one of Canel's professors sent a school-related email to every member of Canel's cohort except Canel. Canel did not receive a second email otherwise sent to her entire cohort concerning a school-related meeting, and, based on her noticeably lower email volume, presumes she did not receive other faculty communications as well,
• A SAIC graduate assistant, who had earlier refused to present a class project jointly with Canel, created a cohort-wide group chat that excluded Canel and used that group chat to communicate details about a fellowship application.
• On March 20, 2024, SPL advertised on social media a "Glory to Our Martyrs" vigil "honoring those murdered in Palestine," to be held jointly with Chicago's Columbia College. The post included Arabic text that translates to "we continue the struggle."
• On April 20, 2024, SPL posted on social media: "We will not stop! We will not rest! We chant alongside the courageous students at [New York City's] Columbia University."
• At an April 26, 2024 walkout, a protester held a sign that read "Long Live the Intifada" in front of SAIC's entrance. The protest included students from SAIC as well as nearby Columbia College and Roosevelt University.
• On May 4, 2024, protesters gathered in the garden of the Art Institute of Chicago (the museum, not the school). Canel describes this protest in Paragraphs 205 through 207 of the complaint and also provides a link to a New York Times article about the event. Based on the allegations that appear in the body of the complaint as well the underlying source material, the Court understands that some of the protesters were SAIC students and that, during the protest, some of the protesters surrounded and shoved a security officer and stole the officer's keys to the museum, blocked emergency exits, and barricaded gates. Chicago police immediately responded and, after two hours of negotiations, removed the protesters at SAIC's request. The police then dismantled the encampment and arrested and charged 68 people with trespassing. During the protest, the protesters chanted: "We will free Palestine, within our lifetime" and displayed signs stating: "By Any Means Necessary." The museum later released a statement asserting that it had offered protesters an alternative venue and that SAIC had promised students they would not face academic sanctions or charges if they relocated.
• The next day, SAIC's President and Provost sent a letter to the SAIC community regarding the protest. Based on Canel's allegations in the body of the complaint and the linked-to letter, the Court understands that the letter described the protest as including "some SAIC students"; described the steps taken "to de-escalate the conflict and mitigate the safety risk"; described failed attempts to negotiate with the protesters; and stated that, after the protesters rejected these offers, the Chicago Police Department arrested those 68 protesters (including some SAIC students) who still refused to leave despite repeated warnings. The letter stated that SAIC would "not pursue any academic sanction against the SAIC students who participated in Saturday's protests," but warned that "those who engage in future activities that jeopardize the safety of our community or the public, or disrupt academic operations, will be subject to disciplinary action." On May 17, 2024, SAIC's president sent an email to the SAIC community that communicated similar information as the May 5, 2024 letter.
• A May 13, 2024 post from an unidentified social media account showed an unidentified individual holding what appears to be a newspaper with the phrase "fight for worldwide intifada." The post's caption listed four Chicago-area universities and colleges: SAIC, the University of Chicago, DePaul University, and Northwestern University. SPL was "tagged" to the post.
• On May 29, 2024, SPL reposted on its social media account an image reading: "It is time for a revolutionary escalation of the global student intifada for Palestine: A call from the Palestinian student movement in the Gaza strip."
• That same day, SPL reposted on Instagram a one-minute video originally posted by two other accounts (including an account identified as "cuny4palestine"). The complaint does not link to the full video but includes one screenshot from it. That screenshot includes the text: "NYPD Brutalizes Anti-Genocide Students, Targets Femmes & Hijabis. It is right to rebel, Hillel go to hell! Baruch." Behind the text, the screenshot shows a person holding a portion of a banner that depicts the Israeli flag with a swastika at the center of its Star of David, surrounded by illustrations of red drops of blood.
• On June 1, 2024, "thepeoplesartinstitute"—which Canel describes as a "violent SAIC campus group"—posted on Instagram "calling for a city-wide, campus-wide month of student escalation for Rafa!" The post asked "students across Chicago" to "ESCALATE NOW, ESCALATE ALL MONTH," "OFF CAMPUS INTO THE HEART OF THE CITY," and stated: "We are not being symbolic when we chant: There is only one solution, intifada revolution … The student intifada will settle for nothing less than a free Palestine." …

There's a lot more in the opinion itself, including claims based on discriminatory treatment that was more focused on Canel herself. As to those, the court (to oversimplify) concludes that the Art Institute responded reasonably to the allegations.

Comments

[y81]

Bummer for David Bernstein, whose comrades keep losing in court. I guess his theory that "Free speech does not include (anti-Semtic) hate speech" is not the law.