American Higher Education Law and the Repression of Pro-Peace Speech on Palestine
Introduction
Three months into Israel’s military aggression in Gaza, the International Court of Justice (ICJ) issued an initial ruling stating that there was a plausible risk of Israel committing genocide in Gaza. Long before the ruling, protests erupted around the world calling for an immediate and permanent ceasefire, and American college campuses were some of the most fertile grounds for this pro-peace activism, as they have been for previous generations. During this time and in the months that followed, Congressional Republicans like Education and Workforce Chairwoman Virginia Foxx, Representative Elise Stefanik, and Judiciary Chairman Jim Jordan held numerous hearings with the explicit intention to redefine the narrative around nonviolent student protests against the Israeli government’s ongoing and rapidly escalating ethnic cleansing of and genocidal campaign against Palestinians in Gaza. These elected officials have weaponized their political influence against university leaders to aggressively crack down on student encampments on college campuses, and have proposed numerous actions to further censor growing student voices rejecting the status quo that has facilitated the American government’s unconditional support to Israel’s aggression against Palestinian civilians.
The aggressive approach by extremist Republicans has had a chilling effect across the political spectrum—Democrats, including the Biden administration, have unfortunately contributed to the broader anti-Palestinian climate that has led to a McCarthyist witch hunt of Palestinian advocates with the goal of suppressing dissent against current U.S. policy. The result has been repeated attempts to draw false equivalencies between student civil disobedience and antisemitism. To be clear: legitimate critiques of the Zionist political ideology, the failed militaristic actions of the Israeli government, and the United States’ unequivocal support for Israel are rooted in an ethos of support for human rights and safety for all, and are consistent with international law. Throughout these hearings, elected officials have distorted popular protest chants and Arabic words like “from the river to the sea” and “Intifada” to detract from students’ calls for real change to achieve Palestinian freedom. They have also minimized Jewish student and faculty solidarity with these protests, despite the reality that anti-Zionist Jewish students are overrepresented across student encampments and protests over the last 10 months. Attempts at gaslighting the American public about the intentions of pro-Palestine student activism are unfortunately rooted in decades of anti-Palestinian racism and are intended to suppress dissent of current U.S. policy to maintain Israel’s continued denial of Palestinian human rights.
This policy paper provides a brief overview of: (1) the history of student activism on college campuses, with a focus on the history of advocacy for Palestinian human rights; (2) background on the role of academic freedom and institutional independence in higher education; (3) the historical and modern role of the U.S. Department of Education in protecting students from discrimination and the legal framework for protecting students’ civil liberties; (4) an overview of civil rights law in education; (5) the current policy landscape; and (6) policy recommendations to improve the campus climate for all students, faculty, and higher education more broadly.
Brief history of student activism and free speech on college campuses; history of Palestinian advocacy
Student activism on college campuses dates back decades, as students have long used institutions of higher education as incubators not just for learning, but for collective activism, nonviolent protests, and to pressure the U.S. government and their institutions’ leadership to change course across numerous issues on which students have believed their institutions have fallen short on policy and action. In the 1960s and 1970s, students protested in support of the civil rights movement, calls for freedom of expression on college campuses, and against the role of the American government in the Vietnam War. More recently, we have seen student activism emerge through protests against South African apartheid, the Iraq War, and most recently for the repeated calls for institutions to fully divest from the fossil fuel industry as global temperatures rise amid a rapidly changing climate.
Activism for Palestinian rights did not begin on American college campuses in 2023; in fact, it dates back over a century to campus organizing following the Balfour Declaration of 1917, which supported the Zionist political ideology to establish a “national home for the Jewish people” in Palestine. In April 1922, months before the US government officially endorsed the declaration, the House of Representatives’ Foreign Affairs Committee held a hearing that included student voices, as well as Jewish- and Arab-American perspectives, pushing back on the political Zionist movement and the dehumanizing narrative of “half-civilized” Palestinians.
Over the course of decades, anti-Zionist student organizations have emerged across American universities—the Arab National League, the Organization of Arab Students, the Association of Arab American University Graduates, the General Union of Palestinian Students, and, most recently, Students for Justice in Palestine, which today is the most prominent group across college campuses supporting equality and justice for Palestinians. During the last two decades Students for Justice in Palestine has grown to over 200 chapters across colleges and universities to build broad student support for Palestinian rights on campuses.
In the last year, student activism has blossomed across hundreds of American college campuses in urgent response to the dire impact of Israel’s war on Gaza, calling for an immediate and permanent ceasefire and freedom for Palestinians from Israel’s incessant military aggression against Palestinians. These collective efforts by students to organize are rooted in democratic participation and cultivate educational and societal learning, important principles of higher education. Students have taken numerous actions, including organizing and participating in educational seminars, speeches, vigils, and “die-ins” to highlight the humanitarian catastrophe and destruction of Gaza, including the tens of thousands of Palestinian civilians killed and the forced starvation of hundreds of thousands more. And as Palestinian and allied student activism has increased, so have complaints of anti-Palestinian racism. According to Palestine Legal, from October 7 to December 31, the nonprofit legal advocacy organization received 478 requests for legal support related to campus organizing alone. These requests for legal support related to university administrators’ aggressive crackdowns on organizing, including targeting student organizers and banning pro-Palestine student groups, including Students for Justice in Palestine and Jewish Voice for Peace.
Students also organized nearly 140 encampments in solidarity with Palestinians who had lost their homes and were displaced to Rafah to live in tents, where the Israeli government escalated its attacks despite previously identifying the region as the last remaining safe haven for more than one million civilians in Gaza. Following pressure from university leaders to disperse, many encampment participants submitted demands, which often included calls to divest university endowments from corporations profiting from Israel’s oppression of Palestinians and to cut ties with Israeli institutions of higher education due to their complicity in that oppression, among other requests, with the goal of advocating for an end to Israel’s ongoing genocide, collective punishment, and violations of international humanitarian law.
In response to this student activism, university officials took aggressive steps to repress student activism under the guise of “safety” and restoring order. But independent analysis of student protests show that the “overwhelming majority of student protests since October—99 percent—have remained peaceful.” When violence did occur, it was predominately initiated by police and pro-Israel rioters who were the primary aggressors, while Palestinian and allied students, professors and supporters bore the brunt of the violence, including hundreds of arrests and brutal beatings by police and pro-Israel rioters. Furthermore, censorship of student and faculty voices in support of Palestinian rights is not new—there is a long and illustrative history of students, academics, and community activists being silenced on college campuses. The crackdown is a clear escalation of over a decade of increasing repression of the student movement for Palestine on campuses.
This repression of student activism is reminiscent of the anti-war protests in 1968 that erupted on college campuses across the United States, most notably at Columbia University, where escalating demonstrations against the Vietnam War and institutional policies led to significant confrontations, culminating in a violent police crackdown and widespread arrests of students and faculty.
But why have campus leaders been so quick to censor student protestors, and, even more so, to resort to police violence and other punitive measures? The reason is because student organizing has historically eventually led to policy change at the federal level, and supporters of Israel’s oppression of the Palestinian people understand this reality. This is why we have seen strong efforts to repress Palestine organizing on campus.
Student protests during the Vietnam War, as well as the anti-apartheid protests in the 1980s, were exceedingly effective at achieving their desired outcomes—to end support and financial ties to the war efforts and regimes engaging in oppressive actions. Additionally, student protests during these moments were pivotal in signaling the shift in public opinion across the country—support for the Vietnam War was dwindling, as was support for apartheid South Africa. Recent public opinion polls on Israel’s attacks against Palestinians have shown a similar shift—less support for Israel’s military efforts and more sympathy for Palestinians suffering from Israel’s aggression, with the largest shift in public opinion coming from youth and young adults.
Today, across campuses such as Columbia, UCLA, NYU, Emory, Dartmouth, Indiana, and many others, the increased police presence on campuses also led to the unnecessary escalation of violence where diverse student populations on the front lines were consistent in their message of solidarity with oppressed Palestinians, and in supporting peace and justice. Police used numerous tactics that made students and faculty less safe, forcibly removing and arresting thousands of individuals across dozens of campuses, tackling them, attacking them with tear gas, shooting individuals with rubber bullets that in some instances even impaired the vision of students, striking students with riot gear and billy clubs, and even discharging a handgun inside a campus building. And specifically at UCLA, the substantial police presence “failed to intervene” as pro-Israel counter-protesters attacked students physically and used fireworks and chemicals to inflict further harm.
Beyond the horrific physical attacks, students have also been punished by their school administrators, including being removed from housing, having their belongings thrown out of residential buildings, losing access to health insurance that was already paid for, and even suspended for purportedly violating university policies and procedures. These actions were often done discriminatorily and without transparency or due process, and taken despite the overwhelming pushback from students and faculty who have vehemently disagreed with the decisions of university administrators (for more read here, here and here). In some cases, university leaders circumvented university practices in order to unilaterally change policies, undermining their students and faculty, and shared governance of higher education. Equally concerning has been the effort to undermine faculty independence in determining how to discuss complicated topics and current events, including the recent effort to cut ties with professors who teach about Palestine (for more read here, here, here and here).
Background on Academic Freedom, Institutional Independence in Higher Education
The historical role of faculty across higher education has been integral to the mission and values of academic institutions. The current wave of political repression, especially against those advocating for Palestinian equality and justice, poses significant challenges to academic freedom and shared governance. Efforts to suppress faculty’s ability to teach about and discuss Palestine have not been the only recent attempts at undermining academic freedom—political influences have also attempted to deter teaching of social justice, racial equity, and gender identity issues. But the exception for Palestine is unique in that if this censorship is not addressed, it will inevitably open doors to other types of censorship, further undermining academia.
Dating back to the beginning of American higher education, academic freedom and faculty independence were fairly limited, as institutions were largely grounded in the religious institutions which founded them and controlled their curriculum. The modern development of academic freedom in America was largely influenced by the modern German research university in the 19th century, particularly the principle of “freedom for the teacher.”
Some of the first institutions of higher education to adopt and embrace this new model for teaching and learning by relying on the expertise of independent experts were Johns Hopkins University and the University of Chicago, founded in 1876 and 1890, respectively. Their emphasis on inquiry and the advancement of knowledge laid the groundwork for academic freedom in American higher education.
In 1915 the American Association of University Professors (AAUP) was originally established to support faculty across institutions on the issues of academic freedom and expression. The Committee on Academic Freedom and Academic Tenure formulated a “Declaration of Principles on Academic Freedom and Academic Tenure” which asserted that academic freedom was essential for the advancement of truth and the well-being of society, outlining three primary freedoms: the freedom of inquiry and research, the freedom to teach, and the freedom of extramural speech and action. The Declaration was formalized in 1940 and co-written by the Association of American Colleges (now AAC&U), and ultimately ratified by more than 250 professional associations. The Declaration established a “Statement of Principles on Academic Freedom and Tenure” which largely ingrained the basic tenets of academic freedom and academic tenure for faculty and was supported by the Association of American Colleges. This Declaration also solidified the role of faculty within higher education’s shared governance structure.
Shared governance is the "institutional organization" that upholds academic freedom by ensuring that faculty members have autonomy over areas in which they possess expertise. This includes curricula, hiring, promotion, tenure, and the evaluation of academic programs, while trustees and administrators maintain areas such as endowments, building maintenance, and admissions. Thus, the processes of firing faculty, making decisions about promotion and tenure, and determining curricula primarily reside within the purview of the faculty. This division of responsibilities ensures that academic decisions are made by those most knowledgeable and capable, preserving the integrity and independence of educational institutions. However, the current environment of repression of student and faculty voices poses significant challenges to the current model of shared governance, academic freedom, and freedom of expression.
American higher education institutions have continuously served as vessels of intellectual growth, wherein faculty members play crucial roles in teaching, research, mentorship, and administration. Faculty are the most critical element of a functioning higher education institution, largely because of their commitment to advancing knowledge independent of external influences. This has historically included protecting faculty positions according to the AAUP principles; however, recent trends highlight significant threats to academic freedom and the principles of shared governance, particularly concerning political speech and advocacy.
The current political climate has seen an alarming trend in which faculty members face severe professional repercussions for expressing political views or even discussing current events in the classroom setting, especially those related to Palestinian human rights. Experts have faced retaliation, not due to a lack of knowledge or inaccuracies, but because entrenched political, institutional, and financial interests opposed their views. This retaliation undermines the integrity and independence of academic institutions. For instance, in Congressional testimony, Columbia University’s President Minouche Shafik made public claims about how tenured faculty members such as Joseph Massad and Katherine Franke were placed on academic review and actively under investigation, even facing possible dismissal over statements related to Israel’s ongoing violence against Palestinians, and how Palestinian students were being treated on Columbia’s campus (for more read here and here). These actions can be interpreted as political retaliation overriding academic freedom.
It also suggests that university leaders are prioritizing external influences over the expertise of their faculty, thereby threatening the university's role in fostering independent scholarly inquiry. The insistence to conform and appease powerful interests risks reducing the academy to an echo chamber for those in power, undermining its foundational mission to explore and disseminate knowledge. Shafik’s actions reflect a broader trend in which faculty expertise is marginalized when it conflicts with dominant political and financial narratives, thereby stifling critical discourse and intellectual diversity on campuses. These actions are often justified under claims of protecting student safety or maintaining campus security, but they fundamentally reflect political repression and a threat to academic freedom.
But higher education serves the public good only when its curriculum and academic policies are determined by those with the appropriate expertise. For instance, when it comes to understanding the Middle East, we should trust the work of scholars in the field rather than politicians like Representatives Elise Stefanik and Virginia Foxx. This principle underscores the importance of academic freedom and the necessity of keeping academic decisions within the purview of qualified faculty. The "Palestine Exception,” which allows for external political pressures to influence academic discourse on Palestine, highlights a dangerous precedent that undermines the integrity of higher education.
Professors have been dismissed or suspended over social media posts or public statements that were critical of Israel or supportive of Palestinian rights (for more read here, here, here and here). These actions are typically preceded by online harassment, media campaigns, and political pressure from donors and external groups, including doxxing campaigns by entities such as Canary Mission and Accuracy in Media, which funded the defamation trucks that visited many campuses (for more read here, here and here). The repercussions extend beyond the individual faculty members, creating a chilling effect on campus discourse and deterring others from engaging in critical discussions.
The Law and Academic Freedom: Freedom of Expression and the Education Department’s Role in Preventing Discrimination
The First Amendment of the U.S. Constitution protects freedom of speech, religion, press, assembly, and petition. While it does not explicitly mention academic freedom, it has been interpreted over the years to extend these protections to academic contexts, particularly within public institutions. In fact, academic freedom principles are considered broader than First Amendment rights in some ways, and private universities often have contractual guarantees around academic freedom. During the era of McCarthyism in the late 1940s and early 1950s, repeated political attempts were made to root out members of the Communist Party from teaching across institutions of higher education.
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.
Ten years later in 1967, the Supreme Court’s decision in Keyishian v. Board of Regents further solidified academic freedom as a constitutional right, prohibiting laws that intended to prevent faculty with Communist Party affiliations from teaching at public universities.
Around the same time, during the civil rights movement, the Supreme Court moved to end segregation in education and the unequal treatment of students. On May 17, 1954, it issued a unanimous ruling in Brown v. Board of Education of Topeka, Kansas that "separate educational facilities are inherently unequal," and therefore a direct violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution (Brown v. Board of Education, 344 U.S. 1 [1952]).
In the years that followed, the civil rights movement gained another victory against discrimination based on race, color, and national origin through the Civil Rights Act of 1964, in large part due to the nationwide protests led by activists. Title IV of the Civil Rights Act codified into law and established federal enforcement requirements of equal protection guarantees under the Fourteenth Amendment, and established pathways to advance desegregation in schools. Title VI further prohibited discrimination in programs receiving federal financial assistance, including educational institutions. Additionally, the Higher Education Act of 1965 included provisions to reinforce nondiscrimination and promoted equal access to higher education for historically marginalized groups, and supported the Department of Education’s Office for Civil Rights (OCR) mission “to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.”
OCR also provides oversight and enforces protections against discrimination under Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, the Individuals with Disabilities Education Act, and Equal Educational Opportunities Act of 1974. However, when it comes to ensuring compliance with civil rights laws and the nondiscrimination of students based on race, color and national origin, OCR primarily focuses on its enforcement authority under (Title VI Sec. 601, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d; 34 C.F.R. § 100.).
Contextualizing Palestine in American Civil Rights Law
When it comes to protecting Jewish, Muslim, Arab, and Palestinian students, it is important to understand how the law applies to protecting students from discrimination in the classroom and on campus, as well as how students and faculty can discuss Palestine and Israel and current events in the region. While none of the laws enforced by OCR, including Title VI, expressly address or prohibit religious discrimination, Title VI does expressly prohibit discrimination based on national origin. Title VI also protects students of any religion from discrimination, including harassment, based on a student’s actual or perceived shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or distinct religious identity. What this means is that these protections extend to Palestinian and Israeli students as well as to Jewish, Muslim, and Arab students. At times these protections are applied unequally by schools and universities, and it is OCR’s job to enforce the law when institutions fall short.
Since last fall, the Biden administration has amplified protections for students of all religious and racial backgrounds, including harassment based on national origin or actual or perceived shared ancestry or ethnic characteristics through additional subregulatory guidance, reinforcing OCR guidance to educational institutions that it is their obligation to protect students from discrimination, and to do so without restricting any rights protected by the First Amendment. This most recent guidance issued in May by the Assistant Secretary for Civil Rights as official correspondence to campus leaders known as a Dear Colleague Letter, clarified the two legal frameworks that can constitute discrimination:
If a hostile environment is created, encouraged, accepted, tolerated, or left uncorrected by a school, or;
If a student was subjected to different treatment by a school representative.
As shown by the illustrative examples throughout this Dear Colleague Letter, there are numerous instances where harassment of a student based on their actual or perceived national origin or shared ancestry, be it Jewish, Arab, or Palestinian, can ultimately be determined as crossing into discrimination. But OCR has explained thoroughly that these determinations require fact-specific evidence to make such determinations. These investigations take time, substantial resources, and often limit what the government can and will say about investigations until they are concluded.
Unfortunately, the Biden administration has separately undermined its own standard practices by making numerous statements on social media, through press releases, and in press briefing rooms that in some ways conflict with these ongoing investigations and the stated policies of OCR. In some cases, the administration has misinterpreted or even misrepresented specific details of events to serve its broader policy goals to suppress dissenting voices on the administration’s continued unconditional support of the Israeli government’s actions in Gaza (for more read here and here).
For example, on May 2, President Biden baselessly condemned the growing nonviolent student encampments as inherently antisemitic without acknowledging any of the numerous instances of university escalations that included police violence or outside, pro-Israel agitators using physical violence and hateful rhetoric against Arab, Palestinian, Muslim, and Jewish pro-Palestine student protestors (for more read here, here and here). As the administration continues to downplay anti-Palestinian racism, violence and hate speech on college campuses toward some students, particularly when it occurs against pro-Palestine students and faculty, it emboldens institutions to similarly downplay anti-Palestinian discrimination that has objectively taken place on college campuses in the past year.
Current Weaponization of the Law and Current Events
While the Department of Education is tasked with enforcing Title VI impartially, there have been numerous actions in recent years that indicate the fragility of this impartiality. In October 2017, then President Donald Trump nominated Kenneth Marcus to be Assistant Secretary for Civil Rights of the Department of Education, despite his long history of filing numerous frivolous Title VI discrimination complaints with the primary intention of intimidating, silencing, and repressing college students organizing for Palestinian rights, none of which were previously found to have legal merit. During his tenure, Marcus undermined policies that protected marginalized populations from discrimination, including by eliminating entire categories of civil rights data collection which ultimately harmed vulnerable student populations. Ultimately, Marcus resigned from his position in July 2020 with outstanding complaints filed against him to the Department of Education’s Inspector General, but not before attempting to advance his years-long ideological effort to push a definition of antisemitism that targets criticism of Israel.
In December 2019, President Trump issued Executive Order 13899 to address antisemitism, stating that federal agencies shall consider the International Holocaust Remembrance Alliance's (IHRA) controversial definition of antisemitism, which deems certain First Amendment-protected criticisms of Israel as being antisemitic, in its investigations (Exec. Order No. 13899, Executive Order on Combating Anti-Semitism [Dec. 11, 2019]).
In 2021, on the final day of the Trump administration, the Department of Education issued a Questions and Answers analysis of the Executive Order, which clarified that the Executive Order did not go so far as to define antisemitism but merely stated that federal agencies, including the Department of Education, “shall consider” the IHRA working definition of antisemitism. In more recent directives, including fact sheets and subregulatory guidance on protecting students from discrimination, the Department of Education has appropriately not included the IHRA definition.
At the same time, the Department of Education has maintained the possibility of issuing regulations building off of President Trump’s Executive Order in its long-term regulatory agenda; these proposed regulations have been repeatedly delayed in the agency’s Unified Agenda. Since President Biden failed to rescind the Trump Executive Order, it remains in effect, despite OCR choosing not to further solidify a definition of antisemitism into regulation, an action which has not been taken for any other types of discrimination.
Since last fall, there has been a newfound push in Congress to conflate antisemitism with criticism of Israel, and to prioritize antisemitism above other types of racial, ethnic, and shared ancestral discrimination. Despite the Department of Education not having definitions for other specific types of discrimination, including anti-Arab hate or anti-Black hate, H.R. 6090, the Antisemitism Awareness Act of 2023, was introduced on October 26, 2023 in an attempt to codify the controversial IHRA definition (Antisemitism Awareness Act of 2023, H.R. 6090, 118th Cong. § 2 [Oct. 26, 2023]). The bill passed the House of Representatives on May 1, 2024, and has a Senate counterpart, S. 4127, but previous iterations of this legislation have appeared in past Congresses, having been introduced but not passed in 2016, 2018, and 2019. Similarly, the Countering Antisemitism Act, S. 4091/H.R. 7921 was proposed as an alternative to the more controversial Antisemitism Awareness Act but maintains some of the same legal and constitutional risks.
The problem with these pieces of legislation is not that they seek to raise awareness of real and dangerous antisemitism that has clearly been on the rise in recent years, primarily from white supremacists aligned with the MAGA agenda (for more read here, here and here). To the contrary, one of the primary purposes of these efforts is to conflate criticism of the state of Israel, the Israeli government, or the Zionist political movement with hatred of or discrimination against Jewish people by adopting the IHRA definition of antisemitism, which has been widely opposed by civil rights and human rights organizations as a tool to stifle Palestine advocacy (for more read here, here and here). There is a clear and important distinction between criticizing a country for its oppressive actions, and violent and xenophobic language against Jewish people. Criticizing a foreign government or a political movement is political speech, and it is a violation of constitutional rights for our government to be in the business of repressing speech when individuals, including students and faculty, are teaching and learning about current events, human rights, and violations of international law.
When individuals criticize Arab and Muslim majority countries or governments for their political actions or ideologies, it is not suggested that this is hateful toward Arabs or Muslims in general; in fact, it is accepted as political speech that the Supreme Court has protected (FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 [2007]).
In addition to both the Antisemitism Awareness Act and the Countering Antisemitism Act, other bills have been introduced in Congress, including H.R.7478, Promote Restoring Order To End Campus Targeting of Jewish Students and Faculty Act, which effectively requires the inclusion of the IHRA definition on antisemitism in all documents and other resources relating to student or employee conduct on campus (Promote Restoring Order To End Campus Targeting of Jewish Students and Faculty Act, H.R. 7478, 118th Cong. § 2 [Feb. 29, 2024]).
There has even been an increased effort across states to adopt the IHRA definition of antisemitism, including in South Dakota, New Jersey, Indiana, and Georgia (for more read here and here). Much like the state effort to adopt legislation to punish individuals who engage in boycotts, divestment, and sanctions for Palestinian freedom, these efforts attempt to limit the type of acceptable speech, including in the educational context, within institutions of learning.
Many of these efforts to change policies have resulted from immense pressure from political actors, donors, and alumni who believe in repressing pro-Palestine speech under the guise of fighting antisemitism. But even as efforts to conflate criticism of Israel with antisemitism have increased across federal and state legislatures, policymakers have seen clear pushback, including letters from over 1,300 Jewish faculty members across universities urging against the adoption of these policies. University presidents are neither well-equipped to dissect whether the criticisms charged by students against a foreign government’s actions falls within protected political speech; nor is it their role to restrict political speech. It should also be clear that students who are discomforted by pro-Palestine speech are not entitled to shut down that speech just because they disagree with it politically.
What is clear is that college presidents have failed to protect their students equally in recent years from discrimination and harassment, whether it be actual antisemitism, anti-Palestinian racism, or anti-Muslim hate (for more read here and here). Further, universities have failed to protect students from physical and mental health impacts of anti-Palestinian racism. This includes racism by police who have been violent with students and faculty, by universities themselves that have discriminated against Palestinians and their allies and exacerbated the hostile environment with their actions and failures to act to protect students and faculty, and by ideologically driven non-campus actors who aim to influence university actions (for more read here, here, here and here).
University actions also raise questions about what types of perceived discrimination are acceptable to campus leaders when some students can report political speech as allegedly detrimental to their safety, thereby limiting spaces where students and faculty can engage in free expression about current events or have difficult conversations where they can freely express their views. Further, it raises existential questions about the future of American higher education—if universities can shut down protests and speech on Palestine, what precedent does that set for the future of student activism and academic freedom, and what issue might be next?
Policy Recommendations:
To uphold the integrity of Title VI and protect academic freedom, it is crucial to reject the politicization of civil rights enforcement. Policymakers should ensure that Title VI is not misused to suppress legitimate political speech, particularly when individuals critique a government’s actions. By rejecting any efforts to conflate the Israeli government and its actions with all Jewish people, we can better protect our Jewish students and peers from real and dangerous antisemitism. Policymakers should:
Reject legislative, regulatory, subregulatory, state, and institutional efforts to adopt overly broad definitions of antisemitism, including the IHRA definition that considers criticism of Israel, the Israeli government, and Zionism as antisemitic.
Consistent with the prior recommendation, it is critical to keep students safe from all types of harassment and discrimination, and protect inherent civil liberties to engage in speech activities, ask questions, debate freely, and discuss difficult topics. Clear guidelines must be established to differentiate between discriminatory conduct and protected political expression. Fortunately, OCR already has an existing set of guidelines to make these determinations on a fact-specific basis. Protecting the existing process from political interference designed to suppress political speech will safeguard the rights of students and faculty to engage in robust debate and advocacy without fear of retaliation or censorship, thereby fostering a more inclusive and dynamic academic environment.
Congress should invest more resources within OCR to increase staff to support Title VI investigations and enforcement to ensure better compliance with the law.
To promote equitable treatment of all students, regardless of their actual or perceived shared ancestry, OCR should ensure institutions provide consistent treatment of students with different backgrounds of actual or perceived shared ancestry. While OCR has provided guidance to institutions through Dear Colleague Letters, this guidance and recent resolution letters and agreements with institutions have unfortunately fallen short of ensuring equitable treatment of students affected by anti-Palestinian racism and discrimination. As the Department considers its range of tools to ensure resolutions to complaints, it is critical that remedies recognize and address underlying biases in order to foster more inclusive and safe learning environments for Palestinian, Arab, and Muslim students, and for any students affected by anti-Palestinian racism that silences, excludes, erases, stereotypes, defames or dehumanizes Palestinians and their narratives. First and foremost, this must begin by acknowledging and addressing rising discrimination, and doing so independently of acknowledging similar types of antisemitic or anti-Muslim discrimination that also exist.
The suppression of political advocacy on campuses has profound implications for the higher education landscape, particularly in the context of political speech and limitations on educational activities on Palestine. The growing fear of professional repercussions for both faculty and students can play a chilling effect and limit engagement in critical discourse, stifling academic inquiry and freedom of expression. Further, suppression of speech and limits on academic freedom can create long-term damage to the shared governance model across higher education and undermine trust between faculty and administration, thereby weakening collaboration in the development and innovation of education. In order to protect faculty independence and academic freedom of nontenured faculty, institutions should:
Limit Administrative Overreach: Decisions to terminate or suspend faculty members without proper due process or faculty involvement undermine shared governance. When administrative actions are driven by political pressures rather than academic considerations, the integrity of institutions is compromised. Policymakers should consider how to effectively communicate the critical role of academic freedom in higher education today.
Reject Donor and Political Influence: As colleges and universities rely more on external partners to grow and innovate, it is critical that colleges do not give up the basic principles of independence and maintain academic integrity. Allowing threats of funding cuts or political backlash to drive decisions on speech and curriculum compromises academic freedom and the open exchange of ideas.
Supporting Labor Rights and Unionization: Unions play a critical role in defending faculty rights and upholding academic freedom. Union involvement is essential in advocating for due process and fair treatment, especially when faculty members face politically motivated actions.
To safeguard academic freedom and reinforce institutional independence from external pressures, the Department of Education could rely on accrediting agencies to strengthen standards for institutions of higher education. Accreditation is one of the core components of the regulatory triad of higher education, with the primary responsibility of providing quality assurance for institutions participating in federal aid programs. As higher education has become increasingly financialized in recent decades, the reliance on adjunct faculty over full-time, tenured faculty has substantially increased, while the role of faculty in the decision-making of institutions has diminished. This shift has played a significant role in affecting educational quality. Policy experts have already suggested that the role of accrediting agencies should incorporate specific criteria that protect the autonomy of faculty and institutions in their scholarly and pedagogical activities. These criteria can emphasize the importance of upholding academic freedom, ensuring that educators can pursue and disseminate knowledge without fear of retribution or interference. By reinforcing these standards, accrediting bodies can play a crucial role in maintaining the integrity of higher education, fostering an environment where academic freedom is protected, and ensuring that institutions remain independent and focused on their educational missions by reestablishing the decision-making role of faculty within institutions of higher education.