A joint report by Amnesty International USA and the ACLU contends that when colleges once tolerated misbehavior, they owe it to continue allowing it.
Amnesty International USA and the ACLU released a report last month that purports to document what they label as an illicit crackdown on pro-Palestine expression dating from October 7. In my view, the broader issue has mostly been the opposite, with university officials, local politicians, and prosecutors displaying excessive tolerance for unlawful conduct by Hamas-supporting protesters, including vandalism, threats, disruptions, harassment, and violence.
Nevertheless, the document makes a significant show of claiming that campuses have punished illicit behavior by anti-Israel activists in ways that amount to disparate treatment. Specifically, it argues that many institutions historically lax in disciplining rule-breaking student demonstrators in other contexts have grown markedly harsher toward anti-Israel protests.
There is some truth to that assessment, but I reject the notion that alleged viewpoint discrimination compelled universities to stand down, for three interconnected reasons.
First, invoking some form of estoppel to justify cracking down on rule-breaking is a weak legal argument. A line like “Your honor, the government did not prosecute the last ten rapists” isn’t going to carry much weight.
Second, the failure of universities to adequately punish misconduct by, say, climate activists represented a case of viewpoint discrimination in itself. It is hard to imagine Columbia University acting with impartiality if anti-abortion or anti-affirmative-action protesters had engaged in the same illicit antics as left-wing demonstrators have.
And finally, civil rights law requires universities to address hostile environments created by illicit conduct. Climate change activists may have violated campus rules, but they did not intimidate, harass, or assault any identifiable group protected by civil rights laws. And that distinction matters legally. I explored these points in more detail in a recent article:
[Advocates for the protestors] argue that many university administrators have long looked the other way when activists for causes such as environmentalism have created encampments, staged sit-ins, disrupted campus events, and otherwise violated university rules and the law.
The protesters are mistaken in thinking that if universities have previously neglected their duty to enforce campus rules, that justifies continued avoidance by campus leaders. It is quite clear to this (and I believe to any reasonable) observer that universities that tolerated sit-ins, encampments, and other rule-breaking on behalf of left-wing causes would have been very unlikely to permit similar student rule-breaking to protest abortion, illegal immigration, or other right-wing concerns.
Many universities have been intolerant even of conservative speech that does not break any rules and is constitutionally protected at public universities, such as satirical affirmative-action bake sales. Institutions that condemn microaggressions against some groups remain silent in the face of far more overt aggression toward Jewish students. The appropriate remedy for such viewpoint discrimination is to end it.
That aside, the post-October 7 protests are distinguishable from, say, the typical anti-global warming protests that may have similarly breached the rules. Anti-global warming protests did not unfold in a climate of violence nor threaten violence against any identifiable group on campus, and thus their rule-breaking did not contribute to a hostile environment for any protected class.
By contrast, lawless “anti-Zionist” demonstrations, as noted above, contribute to a reasonable fear of violence against Jewish students. For instance, the pro-Hamas students at Columbia who broke into a building, detained two custodians, and engaged in vandalism created a legitimate concern that they might next carry out violence against those perceived to be Jews, or at least Jewish supporters of Israel. The targeting of, or the reasonable fear of targeting, a specific group of students protected by Title VI gives universities not only the legal right to crack down on illicit SJP protests even if they tolerated previous illicit protests for other causes, it also imposes on them the Title VI duty to act if the illicit actions create a hostile environment.
In the MIT case, the First Circuit suggested that the existence of unlawful protest activity does not authorize the government to punish constitutionally protected speech. The court, however, failed to consider the converse: that the presence of violent but protected rhetoric may contribute to a coercive or intimidating environment that requires a university to address conduct not protected by the Constitution.
