For Universities Facing Lawsuits Over Antisemitism, First Amendment Offers Uncertain Defense

There are no binding precedents on these complex issues, and the courts will have to balance conflicting rights — to free speech and to a safe environment.

Violence and threats against Jewish students have become so rampant on many American campuses as to create a hostile and unsafe environment. University administrators face difficult challenges — legal, educational, moral, and financial — in trying to deal with this growing concern.

Recently, the secretary of education, Miguel Cardona, warned schools receiving federal aid that if they are insensitive to antisemitism and Islamophobia on their campus, they could lose federal funding. Harvard, on whose faculty I served for 60 years, is among them, and I am prepared to become a whistleblower and witness against my school.

At the same time, I and other lawyers have been called by numerous parents of Jewish students who are contemplating lawsuits against colleges to which they are paying tuition for their children. They report that Jewish students are experiencing hostile environments and threats to their safety.

They point to events such as that which occurred at Harvard, where a group of anti-Israel students surrounded a Jewish student, harassing him, blocking his exit, and reportedly throwing him to the ground. They cite threats against Jewish fraternity houses, kosher kitchens, and other campus institutions frequented by Jewish students.

There are claims of grade discrimination by professors against Israeli students or students who express pro-Israel views.  Although Mr. Cardona echoed the Biden administration in joining together antisemitism and Islamophobia as equal dangers on campus, it is obvious that the major hostilities today are directed at Jewish and Zionist students rather than Islamic or Palestinian Arab students. Indeed, some, though not all, of the threats have come from Islamic and Arab students.

Antisemitic and Islamophobic hate speech are all protected by the First Amendment, with several exceptions. Incitement to immediate violence and harassment are not protected. Nor is providing material support for designated terrorist groups such as Hamas and Hezbollah. This includes financial contributions that are intended to fall into the hands of a terrorist group.

There is an important legal difference between actions taken by the Department of Education, which is a governmental agency, and those taken by private individuals who bring lawsuits against universities. The government is prohibited from taking any action that compels either a public or a private university to restrict protected free speech.  

This does not preclude a private citizen from bringing a lawsuit against either a public or a private university for creating or tolerating a hostile environment toward its Jewish students or for failing to satisfy its contractual obligation to protect them from harassment or threats of violence. Suits have already been filed against NYU and the University of California at Berkeley, and more are coming. 

A public university may be able to defend its refusal to ban protected speech under its own First Amendment obligations. A private university can also claim to be acting in the spirit of the First Amendment, but such a claim might not constitute a complete defense to a breach of contract suit that alleges that a private university ignored its obligation to its students to provide a safe environment.

There are no binding precedents on these complex issues, and the courts will have to balance conflicting rights — to free speech and to a safe environment. Universities will not be able to defend against the claim that it is applying a double standard to Jews as contrasted with other minorities.  

It is crystal clear that such a double standard exists at most universities. No university would tolerate a Ku Klux Klan club that publicly stated that, say, the lynching of African Americans was justified. Nor would it tolerate public statements that gay or transgender students who were attacked deserved it because of their lifestyles.  

These are all examples of constitutionally protected speech that no university would tolerate.  Yet Harvard refused to condemn student groups that published letters blaming the Hamas atrocities of October 7 “entirely” on Israel.  Other universities have remained silent in the face of rabidly antisemitic posters such as the one demanding that the world be “clean” of Jews.

The First Amendment requires all government institutions to remain neutral when it comes to the content of ideas. As Chief Justice Rehnquist put it in 1990: “Under the First Amendment there is no such thing as a false idea.” This means no university that is public or accepts federal funding can seek to distinguish between Jews and other minorities, on the grounds that Jews are somehow “privileged.”  

They must apply precisely the same standard to anti-Jewish or anti-Israel provocations as they would or do to anti-Black, anti-feminist, or anti-gay speech. It is doubtful that any university today meets that test.  To the contrary, the Diversity, Equity and Inclusion bureaucracies at many universities expressly exclude Jews.  

As a former president of Harvard, Secretary Summers, recently  put it: “[w]ith few exceptions, those most directly charged with confronting prejudice — Offices of Diversity, Equity, and Inclusion — have failed to stand with Israeli and Jewish students confronting the oldest prejudice of them all.”

So, if a lawsuit can establish that a given university — private or public — created or tolerates a hostile environment against Jewish students that it would not tolerate against other minority students, that lawsuit might well prevail, even against a First Amendment defense.