A misapplication of the First Amendment has led to an injustice.
A misapplication of the First Amendment has led to an injustice.
O ne of the most consequential threats to civil rights law in a generation has just emerged — and not from the political right, but from the progressive left. The First Circuit, long a champion of civil liberties, has gutted student protections under Title VI of the Civil Rights Act of 1964. Not only does this ruling highlight a gap in civil rights enforcement that disproportionately affects Jewish students, it also undermines the protections against discriminatory harassment that all Americans enjoy under long-standing civil rights laws.
In early 2024, Jewish and Israeli students sued the Massachusetts Institute of Technology for violating Title VI, which requires universities receiving federal funds to take action when discrimination based on protected characteristics — such as being Jewish or Israeli — creates a “hostile environment.” Their lawsuit followed years of escalating hostility toward Jewish students. First, there was the invitation several academic departments extended to Mohammad El-Kurd, an advocate of the “torturous & slow” deaths of Israeli “pigs,” to speak on campus. Then, there was a Holocaust Remembrance Day marked by an image of a defaced Holocaust memorial. After the October 7, 2023, massacre, MIT students received an email from classmates affirming Hamas’s right to “resist oppression and colonization” through violence and pledging support for such efforts “[u]ntil liberation.” Protesters shut down parts of campus and ominously promised a coming “solution: Intifada revolution!”
The First Circuit ruled against the Jewish and Israeli students last month, advancing a novel and troubling interpretation of Title VI. In its view, the abuse the students faced was beyond the reach of Title VI because it was expressed through speech “protected by the First Amendment,” and Title VI does not “requir[e] a university to quash protected speech.”
That directive — that a private university need not “quash protected speech” to comply with Title VI — is legally untenable because it conflates the requirements of two distinct areas of law: constitutional and civil rights. This confusion, in turn, creates an artificial conflict that risks undermining the integrity of both.
In general, constitutional law prohibits the government from infringing upon individual rights. In particular, the First Amendment recognizes that freedom of speech is the cornerstone of our constitutional republic and protects against government infringement on that right, subject to narrow exceptions. Those exceptions create a tiny category of “unprotected speech,” limited to such extremes as true threats and fighting words. Private entities like MIT, however, are not subject to the First Amendment’s limitations, and the distinction between protected and unprotected speech is inapplicable. As many legal scholars noted in the wake of ABC’s suspension of Jimmy Kimmel after his comments on the Charlie Kirk assassination in September, private entities may restrict speech in ways the government may not.
Civil rights law, by contrast, obligates both public and private entities to protect individuals from discrimination in various settings, including schools (the focus of Title VI). To fulfill this mandate, institutions must limit speech that infringes on the civil rights of others. The operative question is not whether that speech is protected or unprotected (a question belonging to a different legal framework); rather, the question is whether the speech rises to the level of discriminatory harassment.
Consider Title VII — another provision of the Civil Rights Act and one with which many Americans are familiar from their employee handbooks and workplace trainings. It protects employees in the workplace by imposing liability on employers who fail to act against hostile environments, even if the underlying harassment would be protected by the First Amendment.
For example, while the First Amendment prevents the government from arresting someone for watching pornography (assuming it depicts consenting adults), Title VII not only permits but affirmatively requires an employer to punish an employee who harasses his co-workers by exposing them to pornography in the workplace. This is hardly controversial. The First Circuit reached that very conclusion in 2001 when a fire department tried to avoid Title VII liability by claiming its employees had a First Amendment right to view pornography at work.
Similarly, under Title VI, a private university receiving federal funds is not just permitted to punish students for harassing and discriminatory comments — it is required to. Title VI specifically protects students from experiencing — and taxpayers from subsidizing — discriminatory harassment on campus. That the underlying speech may otherwise be protected by the First Amendment is not relevant.
The Tenth Circuit, for example, held in 2003 that black students had a viable hostile environment claim when their school permitted white students “to wear T-shirts adorned with the confederate flag, swastikas, [and] KKK symbols.” Although those are all symbols protected by the First Amendment — and although the school in question was a public school, which is typically constrained by the First Amendment in ways that private schools are not — the court concluded that schools receiving federal funds may not tolerate such speech under Title VI.
These decisions enunciate well-settled examples of civil rights law. But the First Circuit, in its recent decision, said the exact opposite: if a private institution like MIT chooses not to punish speech, the First Amendment does not allow “the government or private plaintiffs” to do anything about it.
This decision would have been welcome news to the fire department that chose not to punish the employee who subjected his coworkers to pornography, or to the school that chose not to punish the students who wore racist T-shirts — but it runs counter to the corpus of both civil rights and constitutional law. Indeed, the very purpose of the hostile environment theory of liability in civil rights law is to hold institutions accountable for failing to act. And while the First Amendment protects a range of speech that may also be discriminatory and harassing from government censorship, it does not excuse institutions from their obligation to respond to speech that creates hostile environments.
The short-term consequence of the First Circuit’s decision is that university administrators — hardly known for their neutrality — have impunity to determine whether to respond to harassing speech. And students in the First Circuit will be unable to contest that determination in court.
The long-term consequences are even more destructive. The logical extension of the court’s holding is that hostile environment claims under Title VI (and by extension Title VII and even Title IX) are unconstitutional unless they are based on unprotected speech — a category that excludes most harassment. In fact, the court explicitly raises, but pointedly refuses to answer, the critical question: “under what circumstances, if any, can racist speech be punished pursuant to Title VI without violating the First Amendment?” Hardly any, it would seem. That is an extreme position that virtually no one endorses — not even the most devoted libertarians want to be harassed at work. Yet the First Circuit casts doubt on the constitutionality of all civil rights protections, threatening the decades-long understanding that American schools and workplaces ought to be free of discrimination.