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Holding Schools Accountable for On-Campus Hate

Posted by Joshua J. Lax | Dec 08, 2023 | 0 Comments

Yesterday was the first night of Hanukkah, which is a holiday that celebrates the triumph of light over dark, and the defeat of an oppressor. With the start of the holiday season, the end of the semester, and the upcoming celebration of the new year, it is only fitting that I write about how we as lawyers, and in particular we at FGDM, will fight on-campus hate, violence, and discrimination by holding administrators, faculty, and other educators accountable for preventing religious, ethnic, or ancestral discrimination.

This week, the presidents of three universities testified before Congress about their response to the explosion of anti-semitism and other acts of hate on their campuses. In addition, students from these schools made public statements detailing what campus life is like under these administrations, which mirrors that of so many other academic institutions across the country. While the balance of creating an environment of free speech along with providing a hostile free learning environment is not easy, the picture that emerged from the various statements on Capitol Hill appears to reflect a failure by university administrators to enact policies that allow for freedom of speech on the one hand while taking the necessary actions to prevent students from feeling alienated, harassed, and scared on campus.

The First Amendment protects political speech. The First amendment abrogated (that is, did away with) a system where the king or his parliament could ban political viewpoints the government did not like. Thus, all students should be entitled to express political speech. What recent events demonstrate--including the events discussed in Congress this week--is that the problem is not so much that students disagree with each other over a matter of public importance, but rather that the schools themselves are taking little to no responsibility to prevent the more extreme views and aggressive speakers from turning political speech into discriminatory behavior or creating a hostile environment for other students. 

While political speech may be protected, the law requires these schools to enact policies that prevent discrimination and hostile learning environments. For example, a November 7, 2023 "Dear Colleague" letter from the United States Department of Education Assistant Secretary for Civil Rights makes clear that Title VI of the Civil Rights Act of 1964 requires schools receiving federal funding to provide an environment free from discrimination based on shared ancestry or ethnic characteristics, including discrimination against Jewish, Israeli, Arab, or Muslim students. Significantly, the Department of Education was issuing guidance to universities, colleges, and schools regarding Title VI discrimination long before the October 7, 2023 attack and subsequent armed conflict. Earlier this year, the Department of Education issued a fact sheet in January and a "Dear Colleague" letter on May 25, 2023.  In the May 2023 letter, the Department of Education warned schools that the Office of Civil Rights "generally finds that a hostile environment exists where there is harassing conduct that is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities, or privileges provided by a school." The idea that Universities cannot figure out how to enforce Title VI (which they claimed to Congress this week), when they have done so under Title VII and Title IX, is absurd.

Members of FGDM are committed educators in addition to lawyers, and we are committed to improving the communities we teach in. I am currently representing a client in a lawsuit against the very University I taught at - for sex discrimination, harassment, assault, and retaliation, and my colleagues at FGDM have represented students in Title IX proceedings at other institutions. After watching recent events, and indeed, seeing the alienation and fear students are experiencing on campus first hand, we want to do our part to hold administrators and educators accountable for protecting students. If you or someone you know are the victims of discrimination at their university, college, or school, there are legal remedies to pursue. It is our hope that through the legal channels we can facilitate change and are interested in assessing your options with you. We are interested in insuring that mechanisms exist at each institution that are accessible to students and provide a safe environment for all while respecting and encouraging the free speech and protest which is a necessary part of our democratic principles.

About the Author

Joshua J. Lax

Joshua J. Lax is the head of the firm's Government Affairs and Defense Practice. Joshua combines his extensive experience in criminal and civil cases, including almost forty trials, to assist his clients present the best case possible. Joshua's work with hundreds of witnesses has given him the ty...


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