'Rampant antisemitism on campus': Free speech vs. civil rights in schools

Concerns over campus climate in relation to protests, First Amendment, and civil rights are top of mind for students, faculty, lawmakers, and government officials alike as students from elementary through graduate school are returning to classrooms after a contentious spring semester roiled by nationwide anti-Israel demonstrations. 

A Thursday morning panel in conjunction with the Democratic National Convention hosted by the progressive Zionist group Zioness brought together experts in antisemitism, civil rights, and constitutional law, as well as a recent college graduate with lived experience advocating for the protection of Jewish students on a divisive college campus. 

Rep. Dan Goldman, a New York Democrat and member of the House Bipartisan Task Force for Combating Antisemitism, began the discussion by pointing out what he sees as the differences in the two parties' approaches to campus antisemitism. 

"What you have seen from the Republican party is a lot of bluster, a lot of threats, a lot of exhortations for firings of leaders," Goldman said, noting he did agree campus leaders failed by not demonstrating moral clarity. 

"But what you don't see from the Republican party is any effort to actually address and solve the problem because if you have a president that is fired, that does not change the fact that there's still rampant antisemitism on campus," he said. 

The Department of Education is the one federal government office and agency that is charged with preventing discrimination on campuses, Goldman said. 

On the campaign trail, former President Donald Trump has repeatedly called for the closure of the Department of Education. 

During Trump's August 13 live interview with X owner Elon Musk, the former president again said one of the first acts he'd do in office would be closing up the Department of Education and moving education back to the states. 

According to Goldman, the way for the federal government to solve antisemitism on campus is not to ask questions in a hearing or call for a firing but to make sure that those universities are being investigated and are being held accountable to the law. 

"Now, to do that, you need to have resources for the assistant secretary to do her job properly. And if there are more than 100 new investigations, she needs manpower. She needs resources," Goldman said. "She needs the ability to do that, which is why I have introduced a bill called the Showing Up for Students Act, which would double the funding for the Office of Civil Rights."

Goldman's legislation would provide $280 million in additional funding for OCR, doubling its funding from fiscal year 2023.

'Quantum of Harm is New'

Catherine Lhamon, Assistant Secretary for Civil Rights at the US Department of Education, said there are 7,000 colleges and universities and 18,000 school districts in the country. 

"They are, unfortunately, very often repositories for hate," she said, before adding that the "vitriol and the quantum of harm is new" and providing the data to prove it. 

Throughout the Trump administration, OCR opened a total of 28 cases regarding antisemitism and resolved a total of five, she said. 

Now, OCR has more than 145 active investigations. Before October 7, her office opened more cases than the Trump administration opened during his entire term. 

"Obviously, there's been just an incredible proliferation since then. I don't say that with enthusiasm, I say that with horror," Lhamon said. "I say that because we are seeing a quantum of harm that we couldn't have conceived before. What we are confirming in the investigations in the office is that these actions happen and that all too often, our schools are not standing for our kids."

Lhamon said she's proud to "disabuse any school of the notion that it does not need to act against hate."

Last year, Lhamon said her office saw a 20% increase and an all-time high in the number of complaints filed, with 19,201 complaints coming in across all the OCR's jurisdictional areas. This number includes all Title VI complaints, not just those of antisemitism. 

Lhamon said roughly 400 civil rights investigations around the country are managing the 19,201 cases, so it's hard to move quickly. 

Title VI vs. Free Speech 

Title VI is a component of the 1964 Civil Rights Act which promises no person will experience discrimination based on race, color or national origin in contexts that are funded by the federal government, including schools, Lhamon explained. 

While Lhamon said her office does not have jurisdiction to enforce nondiscrimination with respect to religion, OCR for many decades has had an "expansive understanding" of the guarantee against national origin discrimination to include discrimination based on what's thought of as shared ancestry. 

"So stereotypes, perceptions about people based on their shared ancestry, the region of the world that they come from, or beliefs about countries that are identified by religion, which obviously includes Israel," she said. "

However, she said, the standard for identifying whether something is or is not a hostile environment is a pretty high legal standard. 

OCR looks at it from the totality of the circumstances of whether there's unwelcome conduct based on shared ancestry that's viewed from a subjective and objective perspective rises to the level that it limits or denies access to education. 

All of those steps have to be met to determine that a hostile environment exists, she added. 

Lhamon noted how she didn't mention the First Amendment, including time, place and manner restrictions in her explanation. 

The rules are different under Title VI than they are in the First Amendment, Goldman also said, because there can be hate speech under the First Amendment, Goldman said. But under Title VI, if that hate speech creates a hostile environment or makes a particular group feel unsafe and insecure that violates the law, even if it may otherwise be protected by the First Amendment.

Where many of these university presidents failed is by talking about the First Amendment and not about Title VI, he added.  

"I am unbelievably frustrated by the number of times I hear from school communities that they can't figure out how to balance the constitutional protections of free speech with the non-discrimination protections that are long-standing in our schools," she said. 

Lhamon acknowledged that when speech is protected, the speaker cannot be disciplined. 

However, she said, schools can still ensure students feel safe and can access class, and do not have their access to education limited. 

Erwin Chermerinsky, a constitutional law scholar and dean of the UC Berkeley School of Law, added it's important to recognize that freedom of speech isn't absolute

Luda Isakharov graduated this May from the University of Oregon, where she experienced resistance from the administration over enforcing its policies regarding anti-Israel protests sweeping campus. 

Isakharov, who also served as a special assistant to the university's Board of Trustees, said she repeatedly heard from her administrators that they couldn't do anything about the protests because of free speech. 

On campus, she felt the lines between free speech and Title VI were blurry. 

While OCR released a Dear Colleague letter in May reminding schools of their legal obligation under Title VI, Isakharov called for clearer guidance on the difference between First Amendment and Title VI obligations. 

'Why This Matters'

Lhamon highlighted the Biden administration's National Strategy to Combat Antisemitism, the first of its kind in US history, and called it "the most comprehensive response to antisemitism ever from government."

Lhamon said she can attest to the whole-of-government approach and the White House's intense interest in ensuring OCR is using every tool at its disposal. 

"And I certainly have to answer that to the White House very frequently, so there's no question in my mind that all of us in government are doing what we can to use our tools," she said. "I am a political appointee, but President Biden's conviction on this, commitment to eradicating hate is his core. And Vice President Harris is every bit with him, every step of the way, on ensuring that this is not where we live, this is not how we continue and this is not who we will be as a country."

Lhamon reflected on something an advocate for investigations into antisemtism on campuses said to her shortly after October 7. 

"They said to me, 'Jews' experience in the world is that we have to leave countries. Don't make this country a country that we have to leave,'" Lhamon recounted. "I will never forget that distillation of why this matters. I operate with that, and my colleagues in government operate with that in mind every day."