Beyond the Ivy League: Stopping the Spread of Antisemitism on American Campuses: Hearing Before the H. Comm. on Educ. & the Workforce, 119th Cong., May 7, 2025 (Statement of David D. Cole)

Abstract

In this testimony, submitted to the House Committee on Education and the Workforce for a hearing on antisemitism on campus, I sought to offer a legal framework for considering antisemitic speech on campus. The testimony cautions against equating criticism of Israel with antisemitism. But more importantly, it notes that even where speech is actually antisemitic, it is generally protected by the First Amendment (and therefore also protected by private university policies that protect free speech on campus). Title VI of the Civil Rights Act does not prohibit antisemitic speech, even virulently antisemitic speech. It prohibits discrimination on the basis of Jewish or Israeli identity. But antisemitic speech is not necessarily discrimination. Individually targeted harassment can constitute discrimination. But where speech is not targeted at an individual, it constitutes discrimination only if it is so “severe, pervasive, and objectively offensive” that it denies students equal access to education. Those are very high bars. Most speech criticizing Israel or supporting the Palestinians at a campus protest will not meet either bar, and to that extent federal antidiscrimination law has nothing to say about it. And even if student speech does constitute discrimination, the university is only responsible if it is “deliberately indifferent” to that discrimination. If it has a complaint procedure, considers, investigates, and adjudicates credible complaints, and imposes some sanction where it finds that the facts support the complaint and rise to the level of discrimination, it is not “deliberately indifferent.” Thus, to determine whether a school has actually violated Title VI, it is not enough to accept complaints as true. It requires careful assessment of the facts, often in a hearing in which competing accounts can be considered and the truth can be ascertained. The hearings conducted by the House Committee on Education and the Workforce have not been a serious or even a good faith effort to ascertain facts and apply the legal standards. They have instead been more akin to the McCarthy era hearings of the House Committee on UnAmerican Activities. That approach does nothing to solve the problem, and risks chilling speech and interfering with academic freedom