Title VI Hostile Environment Law in the Shadow of Antisemitic Violence
- Author(s):
- David E. Bernstein
- Posted:
- 01-2026
- Legal Studies #:
- 26-01
- Availability:
- Full text (most recent) on SSRN
ABSTRACT:
Following Hamas’s October 7, 2023 attack on Israel, American universities have faced a wave of Title VI complaints alleging deliberate indifference to antisemitic harassment of Jewish students. Many of these claims arise in the context of anti-Israel campus protests featuring rhetoric that, while deeply offensive and often perceived as endorsing violence, is ordinarily protected by the First Amendment. Courts and commentators have increasingly concluded that such protected speech cannot form any part of a cognizable hostile-environment claim. This Article argues that this conclusion rests on a fundamental misstatement of both Title VI doctrine and the nature of the claims being advanced.
The Article contends that Jewish students’ post–October 7 claims do not seek to impose liability for protected political expression. Rather, they allege that universities have failed to address unprotected antisemitic conduct—including physical assaults, threats, intimidation, vandalism, unlawful encampments, and selective nonenforcement of neutral conduct rules—that materially interferes with access to education. Within this framework, protected speech plays a limited but legitimate role: not as actionable harassment, but as contextual evidence bearing on whether a university’s inaction in the face of unprotected conduct reasonably gives rise to fear of violence and intimidation.
Drawing on extensive documentation of antisemitic assaults and threats on campuses and in the surrounding society, the Article argues that the “reasonable person” standard governing hostile-environment claims must be applied in light of contemporary conditions. When violent rhetoric coincides with lawless behavior and administrative indifference, Jewish students’ fear for their physical safety cannot be dismissed as hypersensitivity to ideas. Properly understood, Title VI permits—indeed, requires—universities to enforce neutral conduct rules to mitigate hostile environments without suppressing protected speech. Courts therefore err when they dismiss such claims at the pleading stage by conflating demands for physical security with demands for ideological conformity.