Chemerinsky and Gillman are the co-authors of Free Speech on Campus, and have long defended free speech and academic freedom. (For another recent item from the two of them, see here ["Free speech 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 thoughts on the subject are always interesting, and based on deep academic expertise. Here's an excerpt from their Yahoo! News piece yesterday:
We applaud the efforts of the Department of Education to require that campuses deal with anti-Semitism and Islamophobia 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 schools 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 speech that constitutes discriminatory harassment within the meaning of federal law. The official standard promulgated by the Education Department is that campuses must respond when the speech "is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person's ability to participate 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 speech, including speech that would not meet the definition of harassment, can create a hostile 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 — those ideas….
Universities have been advised that statements from protesters such as "From the river to the sea, Palestine will be free" — which are clearly constitutionally protected — likely create a hostile environment for Jewish students which undermines their equal opportunity to an education, thus requiring investigations and mitigation efforts. But this is speech protected by the First Amendment, and we know that some Muslim, Arab and Palestinian students similarly feel threatened by protesters who chant "We stand with Israel." Do they also require investigations and mitigation efforts?
