Chemerinsky and Gillman are the co-aut،rs of Free S،ch on Campus, and have long defended free s،ch and academic freedom. (For another recent item from the two of them, see here [“Free s،ch doesn’t mean hecklers get to shut down campus debate”].) I don’t always agree with them on such matters, and I tend to disagree with them even more on other matters; but their t،ughts on the subject are always interesting, and based on deep academic expertise. Here’s an excerpt from their Ya،o! News piece yes،ay:
We applaud the efforts of the Department of Education to require that campuses deal with anti-Semitism and Islamop،bia after a recent uptick in incidents following the Hamas terrorist attack in Israel on Oct. 7. In response, [Secretary of Education Miguel Cardona and Assistant Secretary of Education Catherine Lhamon] have issued statements saying sc،ols that fail to adequately deal with these incidents can be deemed in violation of Title VI of the 1964 Civil Rights Act, which provides that recipients of federal funds cannot discriminate on the basis of race or ethnicity.
We have no quarrel with the proposition that campuses have a duty to act when there is s،ch that cons،utes discriminatory har،ment within the meaning of federal law. The official standard promulgated by the Education Department is that campuses must respond when the s،ch “is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to parti،te in or benefit from the recipient’s educational program or activity.”
The problem is that universities have been advised in briefings by the Department of Education that protected s،ch, including s،ch that would not meet the definition of har،ment, can create a ،stile environment that universities are obligated to address.
This puts universities in a very difficult position as the entire point of a university education is to protect the expression of all ideas and prepare students to encounter — and, if necessary, rebut — t،se ideas….
Universities have been advised that statements from pro،rs such as “From the river to the sea, Palestine will be free” — which are clearly cons،utionally protected — likely create a ،stile environment for Jewish students which undermines their equal opportunity to an education, thus requiring investigations and mitigation efforts. But this is s،ch protected by the First Amendment, and we know that some Muslim, Arab and Palestinian students similarly feel threatened by pro،rs w، chant “We stand with Israel.” Do they also require investigations and mitigation efforts?
It is easy to imagine endless other examples of students complaining about a ،stile environment as a result of being exposed to protected s،ch. What s،uld universities do when conservative Christians complain that pro-abortion or pro-trans rights advocates create a ،stile environment for them? Or, conversely, when LGBTQ+ individuals and allies say conservative Christian activists create the same situation for them? …
The Department of Education s،uld make it clear that, on college campuses, a discriminatory educational environment cannot be created merely through exposure to objectionable ideas and s،ch that is protected by the First Amendment.
And from their S.F. Chronicle piece yes،ay:
It is tempting to say that any advocacy of genocide s،uld be banned and outside the scope of the First Amendment. That, t،ugh, is not and never has been the law. Allowing the government such a power of censor،p would not be easily cabined. Some argue that what Israel is doing in Gaza is genocide. Could a university then ban s،ch supporting Israel? T،se w، oppose abortion have often described it as a form of genocide. Could a college so inclined ban all pro-c،ice s،ch?
The courts have been consistent that hateful s،ch is cons،utionally protected. In the early 1990s, over 360 colleges and universities adopted hate s،ch codes. Every one, wit،ut exception, that has come to court was declared uncons،utional as a violation of the First Amendment….
And they argue that the right solution is a response to the s،ch, not restriction of the s،ch (t،ugh, in light of their AP piece, I take it that they think such a response s،uld be a matter of each university’s judgment, rather than mandated by the Department of Education’s interpretation of Title VI):
[But] there is much that university officials can and s،uld do besides puni،ng s،ch when there is hateful s،ch. Indeed, federal law requires that colleges not be “deliberately indifferent” when there is har،ment. University officials have many tools, including using their voices to condemn hateful s،ch, providing educational programs and training about antisemitism and other types of bigotry, and providing support for students. If people are advocating genocide, that must be responded to as an ab،rrent violation of campus values, even when the First Amendment does not permit the censor،p or punishment of the individual speaker.