Education Department Steps Up Efforts to Combat Antisemitism

The Education Department is clarifying how exactly colleges and universities can comply with federal civil rights law as campuses continue to see antiwar protests and encampments and Jewish students continue to report feeling unsafe following a rise in antisemitic incidents across the country.

In a Dear Colleague letter released Tuesday, the department’s Office for Civil Rights (OCR) offered its most concrete guidance since the start of the Israel-Hamas war, explaining what constitutes a violation of Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race or national origin. The department had previously said that Title VI covers discrimination based on shared ancestry, which includes Jews, Muslims and members of other ethnic or religious groups. But colleges haven’t known for sure what forms of discrimination would be considered federal violations.

Since the Hamas attack on Israel in early October, OCR has opened 145 investigations into complaints alleging a shared ancestry Title VI violation. The department has yet to resolve any of those investigations, so the guidance offers more insight into how OCR is interpreting Title VI as it works through the complaints.

The guidance letter, the department’s fourth in the past year about campus antisemitism, lays out nine examples of conduct that could raise concerns under Title VI. The guidance is not binding and doesn’t dictate the outcome of an investigation, OCR cautioned. It said the 20-page document is aimed at providing clarity to colleges, universities, students and the broader public.

“OCR designed this resource to help school communities know how to ensure every student has equal access to education without a hostile environment based on negative stereotypes or bias about where their families come from,” Assistant Secretary for Civil Rights Catherine E. Lhamon said in a statement.

As students across the country have held rallies and set up encampments in solidarity with the people of Gaza, college administrators have been caught between protecting the right to free expression on campus and ensuring Jewish students feel safe on campus. Demonstrators on some campuses have been accused of intimidating Jewish students and chanting antisemitic phrases. In recent weeks, college administrators have moved more forcefully to shut down protests, particularly the encampments.

One of the thorniest questions for college administration is where to draw the line between protected speech and speech that’s considered harassment. Colleges are obligated to respond, the OCR said, when a hostile environment prevents a student from being able to participate or benefit from an educational program. Colleges can violate Title VI if they determine that a hostile environment exists but don’t take steps to end the harassment, to address its effects on students and to prevent it from recurring.

OCR says in the guidance that nothing in the Title VI regulations requires a college to restrict rights protected under the First Amendment.

“The fact that harassment may involve conduct that includes speech in a public setting or speech that is also motivated by political or religious beliefs, however, does not relieve a school of its obligation to respond under Title VI … if the harassment creates a hostile environment in school for a student or students,” the guidance says.

“For instance, if students at a public university engage in offensive speech about members of a particular ethnic group and that speech contributes to a hostile environment within an education program about which the university knows or should know, the university has a legal obligation to address that hostile environment for students in school,” the guidance says. “The university may, however, be constrained or limited in how it responds if speech is involved.”

The guidance follows up on a letter that Education Secretary Miguel Cardona sent Friday to college leaders about campus antisemitism. He specifically pointed to reported examples of Jewish students being physically assaulted or harassed while walking on campus, being subjected to virulently antisemitic statements, being subjected to verbal abuse, and coming back to their dorm rooms to find swastikas on their doors.

“These and other such incidents are abhorrent, period,” Cardona wrote. “They have no place on our college campuses.”

Cardona repeatedly pointed to the guidance letter during his House testimony Tuesday as an example of how the Education Department is working to combat campus antisemitism. Colleges that refuse to comply with Title VI could lose federal funding, he said, but added that it’s a last step.

“The goal is to change behaviors, make campuses safe for all students and address the underlying issues,” he told lawmakers.

House Republicans criticized the guidance for not explicitly saying whether the phrase “From the river to the sea, Palestine will be free” violates Title VI. The guidance document does say, without getting more specific, that “the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a hostile environment under Title VI.”