The article is here; the Introduction:
Since Hamas's October 7, 2023 attack on southern Israel, the start of the subsequent war in Gaza, and an outbreak of campus protests expressing vehement hostility to Israel, dozens of universities across the United States have faced lawsuits, administrative complaints, and federal investigations alleging dereliction of their Title VI duty to protect Jewish students from discrimination. These Title VI claims typically include allegations that universities have been deliberately indifferent to the way actions by anti-Israel protesters have created a severe and pervasive hostile environment for Jewish and Israeli students.
Public attention has focused on perceived hateful speech by anti-Israel protesters. This includes slogans seen as calling for the destruction of Israel (e.g., Arabic chants of "From River to the Sea, Palestine is Arab"); speech that is often interpreted as calls for violence against Israel, Jews, and their supporters (e.g., "Globalize the Intifada" and, in Arabic, "Khaybar Khaybar oh Jews, the army of Muhammad will return"); expressions of support for Hamas in general (e.g., "Glory to the Martyrs") and its October 7 crimes in particular (e.g., flyers that feature paragliders, glorifying the Hamas terrorists who massacred Israelis after flying into Israel on paragliders); and pro-Hamas events on October 7, 2024, the anniversary of the massacre.
Judicial decisions and scholarly commentary have tended to frame the Title VI claims primarily as conflicts over political expression of this sort by anti-Israel protesters. In late 2023, the federal Department of Education advised university officials that in the context of anti-Israel protests, constitutionally protected speech alone can create a hostile environment that universities are obligated to address, albeit without suppressing speech.
Much of the subsequent debate, in courts and otherwise, has been over whether rhetoric widely perceived as antisemitic or as endorsing violence in the abstract can ordinarily support hostile-environment liability without violating the First Amendment. Jewish students' claims should be rejected, some argue, as objections to rhetoric the students find deeply offensive but that is constitutionally protected. A recent attention-getting article asserted that Jewish students' claims may not ordinarily rely—even merely as evidence of an overall hostile campus climate—on campus protesters engaging in such incendiary rhetoric.
This Article argues that prevailing analyses of post-October 7 Title VI claims are incomplete and are often legally mistaken because they ignore or misinterpret a central element of hostile-environment doctrine: context. Hostile-environment law asks whether conduct is so severe, pervasive, and objectively offensive that it effectively denies students access to educational opportunities. This inquiry is contextual and depends on the "constellation of surrounding circumstances."
