Alex Kane
Jewish Currents / November 15, 2024
Pro-Israel groups have remade Title VI into a tool of repression—and a second Trump term will supercharge their crusade.
On January 17th, Laura Rosenbury, the president of Barnard College, called sociology professor Debbie Becher into her office to discuss an event Becher was helping plan alongside several Jewish students: a screening and discussion of the documentary Israelism, which chronicles young American Jews’ disaffection with Zionism. Joined by provost and dean of the faculty Linda Bell, Rosenbury told Becher to “pause” the screening, according to notes of the meeting Becher kept. Rosenbury acknowledged at the outset that it was “hard to think of [Israelism] as an antisemitic film.” Nevertheless, she wanted the screening indefinitely postponed due to fears that it would trigger legal action against the school under Title VI of the Civil Rights Act, which bars schools receiving federal funding from creating or permitting a “hostile environment” for students on the basis of race or national origin—and mandates that colleges found to have violated the statute must come to an agreement with the federal government to change policies or risk being stripped of their federal funding.
Rosenbury’s concern was based on legal action that Israel advocates had recently taken against another school for alleged Title VI violations. At the meeting, she showed Becher a printed copy of a lawsuit from the prior week alleging that a screening of Israelism at Harvard had contributed to a “hostile environment” for Jews, and demanding damages and school policy changes—including the firing of deans and professors and the expulsion of students. In this context, Rosenbury noted that Barnard’s board, as “fiduciaries” for the school, had instructed her to notify them of anything on campus that could trigger a Title VI complaint or lawsuit, and with it litigation expenses and hefty fines; Bell told Becher that the screening was one such risk, and “just something that we can’t tolerate right now because we know that it’s a trigger; because we know that in Washington, they’re looking for that film.” Ultimately, Becher refused to stop planning the event, and Barnard officials allowed her to move ahead with it. Even after approval, though, a college official emailed Becher to note that audience reactions to the film at other schools had been alleged to contribute to a hostile environment in violation of Title VI, and asking that she “ensure that audience reactions and the ensuing panel discussion will remain respectful and inclusive at all times and devoid of any discrimination or hate speech.”
According to a Barnard College spokesperson’s statement to Jewish Currents, the film screening and panel ultimately “took place in February, consistent with our longstanding practice of allowing professors and academic departments to host events that represent a wide range of perspectives.” To critics, however, the whole episode was an alarming act of attempted censorship, with Miriam Nunberg, a former staff attorney at the Department of Education (DOE)’s Office for Civil Rights (OCR)—the principal agency that enforces Title VI in educational settings—telling Jewish Currents that the Barnard president’s invocation of Title VI to interfere with a film screening was a “misuse” of the law. “The film is produced by a Jew; it has Jewish protagonists; it discusses different viewpoints about Israel within the Jewish community in America,” said Nunberg. “It doesn’t seem to me that there’s anything in that film that inherently creates a hostile environment that would rise to the level of a Title VI violation for any Jewish student on campus.” Instead, Nunberg said, Title VI was being deployed as “a pretext for violating the right of free expression on campus.” Becher agreed, adding that by trying to censor campus speech in the name of legal compliance, university administrators are capitulating to groups that have “weaponized” Title VI to repress political expression about Israel/Palestine.
The case at Barnard is far from singular. Ever since students began protesting Israel’s devastating war on Gaza—which experts call a genocide—Title VI has been central to pro-Israel groups’ attempts to silence such dissent. In November 2023, the Anti-Defamation League (ADL), Hillel, the Brandeis Center, and the law firm Gibson, Dunn & Crutcher launched a new helpline to allow students to report what they define as antisemitic incidents, seven of which later became Title VI complaints. Since the threshold for filing a case at OCR is very low—anybody can file a civil rights complaint, even if they have no connection to a school—Zionist actors have rushed to use the complaint system for their own ends. For instance, Zachary Marshall, the editor of the conservative website Campus Reform, filed at least 30 civil rights complaints at multiple schools, most of which target pro-Palestinian statements, protests, and social media posts. “OCR has been completely caught off guard by this exploitation of Title VI,” said Radhika Sainath, a senior staff attorney at the civil rights group Palestine Legal.
Amid the influx of new Title VI complaints, the OCR has opened an unprecedented 153 “shared ancestry” investigations—the category that encompasses cases of antisemitism as well as those of anti-Palestinian, anti-Arab, and anti-Muslim discrimination—since October 2023, a fivefold increase over the number of cases opened during the first Trump administration. OCR head and assistant secretary for civil rights Catherine Lhamon told Jewish Currents that “the fact of opening a case for investigation is no indication that the law has been violated.” However, university administrators have used the existence, or danger, of such investigations—as well as the risk of Title VI lawsuits—to justify cracking down on pro-Palestinian speech and protest. In April, Jodi Dean, a tenured professor of politics at Hobart and William Smith Colleges, was swiftly suspended and barred from teaching after she wrote an article that cast Palestinian militants’ October 7th attack as liberatory—with administrators writing that the school had an “obligation under federal anti-discrimination laws, including Title VI, to investigate and take prompt action” when there is a “possibility” of a Title VI violation. The same month, Columbia University’s then-president Minouche Shafik said that pro-Palestine protests at the school had created a “hostile environment” in violation of Title VI; she then called in the police to break up the students’ Gaza solidarity encampment and building occupation. “Title VI wasn’t designed to be used like this, but now it is being deployed as a lawfare tool to censor people speaking up for Palestinian rights,” said Sainath. Tyler Coward, lead counsel for government affairs at the free speech group Foundation for Individual Rights and Expression (FIRE), concurred, noting that when universities are “caught between losing federal funding for falling out of compliance with Title VI or standing up for the First Amendment rights of their students,” many “choose to censor their students in order to continue to receive federal dollars.”
The misuse of Title VI is being driven not just by university administrators, but also by lawmakers. Already, politicians from both parties have repeatedly cited Title VI in efforts to clamp down on student protest. In November, more than three dozen state lawmakers in New York called on the governor to ban Students for Justice in Palestine, arguing that Title VI requires her to do so. At the federal level, too, such invocations are becoming common: During a December 2023 House Committee on Education and the Workforce (HCEW) hearing with university presidents, for instance, Rep. Bob Good suggested that Palestine solidarity activism at Harvard breached civil rights law, and asked the Harvard president why Congress should “continue to invest money in Harvard when Harvard clearly violates Title VI.” An October 31st report authored by GOP members of the HCEW similarly charged that universities that did not prevent pro-Palestine encampments and that negotiated with them may have violated Title VI, and suggested that federal funding for such universities should be reassessed. With Donald Trump poised to retake office in January, such patterns are set to intensify. Kenneth Marcus, the former head of OCR under Trump, predicted the new Trump administration would “take much more seriously the prospect of denying federal funds to colleges and universities that violate the rights of Jewish and other college students”—a policy that could effectively make federal educational funding contingent on repression of pro-Palestine protests. “There’s a lot of bipartisan consensus around Zionism, and it’s no surprise this is true at the DOE as well,” said Genevieve Lakier, a professor at the University of Chicago Law School who is an expert on free speech law. Under a Republican trifecta, Sainath said, this consensus stands to become formalized in the realm of education, and “Title VI could become the Trojan Horse to codify the notion that anti-Zionism is antisemitism.”
While the misuse of Title VI by Israel advocates is now a deeply entrenched phenomenon, it is also a relatively new one. For decades, the statute—a central plank of the 1964 Civil Rights Act that applies to virtually every educational institution in the US—had no bearing on the treatment of Jewish students on campus; in fact, Title VI does not mention religion as a protected class. But Jewish students began to be covered under the law beginning in 2004, when Marcus, a conservative lawyer who was the interim leader of the George W. Bush-era OCR, issued official guidance instructing schools to consider Title VI to prohibit discrimination against “groups that exhibit both ethnic and religious characteristics, such as Arab Muslims, Jewish Americans and Sikhs.” On paper, Sainath said, this was a good thing “in so far as no student should face a hostile environment just because religion isn’t explicitly denoted.” However, “the problem is that it has been used as a sledgehammer to suppress student speech supporting Palestinian rights and the expression of Palestinian identity on college campuses.”
Indeed, Marcus’s move soon prompted a number of Zionist groups to file civil rights complaints—and, separately, federal lawsuits—alleging that various universities were violating Title VI by permitting a hostile environment for Jewish students. Such complaints sometimes included instances of clear antisemitic harassment, but often cited pro-Palestinian speech and activism as contributing to Title VI violations. Israel advocates continued filing cases throughout the 2010s after the Obama administration’s OCR affirmed Marcus’s guidance that Jews and other religious minorities who have “actual or perceived shared ancestry or ethnic characteristics” are covered under Title VI. Many of these attempts appeared unsuccessful, with the OCR moving slowly on or repeatedly dismissing the groups’ complaints and finding that alleged cases of antisemitic harassment were either protected expression or, in some instances—such as one in which a camera was shoved in the face of a pro-Israel student—harassment based on political speech, which is not covered under Title VI. Nevertheless, pro-Israel actors continued to file Title VI cases and lawsuits because, as Marcus argued in a 2013 op-ed, they put universities “on notice” and “expose[d] administrators to bad publicity” even when they did not succeed.
This pro-Israel Title VI strategy intensified during the Trump presidency, with Marcus himself being appointed assistant secretary for civil rights and head of OCR. He quickly proceeded to open multiple investigations into schools on the basis of complaints that cited pro-Palestinian activism. Additionally, Marcus successfully pushed for a Trump executive order that not only codified his own 2004 guidance that Jews are covered under Title VI, but also directed federal agencies that enforce Title VI—including the DOE—to consider how they could incorporate the controversial International Holocaust Remembrance Alliance (IHRA) definition of antisemitism into their work. The IHRA infamously classifies some criticism of Israel as antisemitism, and the order raised fears that OCR would issue regulations declaring anti-Zionism to be antisemitism and thus mandate university crackdowns on pro-Palestinian activism. Before this could happen, however, Marcus stepped down from the OCR amid a cloud of controversy, after civil rights groups filed complaints with the DOE’s inspector general alleging that he had abused his power in two separate cases. Six months later, Joe Biden became president and appointed civil rights lawyer Lhamon to be his own assistant secretary for civil rights.
During Biden’s term, the OCR repeatedly delayed issuing regulations on how it would enforce Trump’s executive order, disappointing Zionist groups as well as Marcus, who complained that university leaders were “disregard[ing] the executive order because it was issued by the prior administration.” Still, the Biden administration—like the Obama administration before it—maintained Marcus’s interpretation of Title VI, and, further, affirmed its importance as part of its national strategy to counter antisemitism. Moreover, Biden did not revoke Trump’s executive order, leaving open the possibility that the DOE could adopt IHRA as the definition of antisemitism. In January 2021, the agency even said that it “will consider the IHRA definition in handling complaints of anti-Semitism,” though it cautioned that an incident considered antisemitic under IHRA would not automatically violate Title VI. These moves left Title VI on the table as a potential instrument of repression, and paved the way for future abuses of civil rights law.
As Palestine solidarity activism ramped up in October 2023, Zionist groups turned to Title VI, and to the infrastructure they had built around the statute over the past two decades. In the past 13 months, Israel advocates have publicized the filing of at least 70 OCR cases alleging Title VI violations on the basis of national origin discrimination, many focused on pro-Palestine protests, according to figures shared by the scholar Darryl Li. They have also filed at least 15 federal lawsuits alleging Title VI violations, citing student protests and statements in solidarity with Palestinians in tandem with actual instances of harassment, according to Li’s figures.
On the DOE front, such complaints have frequently led to the opening of OCR investigations. For instance, the pro-Israel activist Marshall has singlehandedly prompted OCR to open investigations into a dozen schools. “It seems that every complaint that is filed alleging an antisemitic hostile environment due to speech critical of Israel’s genocide is taken seriously and is investigated,” said Sainath. “It does not seem like OCR has a strategy in place for dismissing these complaints.” Indeed, when asked what the OCR’s threshold for opening an investigation is, Lhamon said it was “very low.” “OCR’s jurisdictional charge requires that whenever we have information that the law may have been violated, we investigate,” she said.
OCR carried out one such civil rights investigation at Lafayette College, following a complaint that students using the phrase “from the river to the sea, Palestine will be free” contributed to an environment of anti-Jewish hostility on campus. Before the OCR complaint, a college official had already met with at least one student who used the phrase to assert that it could be considered antisemitic; the president of the school had also emailed the campus community calling the episode an “incident of deep concern.” However, after pro-Palestine students made subsequent social media posts using the phrase—as well as other posts criticizing Israel—college officials told an offended student that there was nothing they could do because statements made on private social media accounts are protected speech. In the course of its investigation, OCR criticized the school’s response, stating that it “did not address whether social media and off campus conduct individually or collectively created or contributed to a hostile environment based on shared ancestry.” After a seven-month review, the college reached a voluntary resolution with the agency, agreeing to improve its bias training as well as its policies and procedures on addressing discrimination complaints. Lafayette also agreed to provide the OCR with information on how it investigates bias complaints for the upcoming two academic years. Throughout this investigation and others, the agency refrained from weighing in on how schools ought to respond to phrases like “from the river to the sea,” and Lhamon told Jewish Currents that the OCR was “not asking schools to censor particular forms of speech.” However, civil liberties advocates say that the investigation at Lafayette, like many others of its kind, still speaks to the OCR’s participation in posing threats to free speech on campus. “The only reasonable interpretation of the Lafayette resolution is that OCR is asking institutions to censor more speech to comply with Title VI,” Coward said.
As was the case at Lafayette, the voluntary agreements reached through OCR processes—of which eight have been finalized for cases filed since October 2023—largely center on bureaucratic steps that universities promise to take to address discrimination; however, such resolutions can still encourage severe crackdowns on speech. For instance, during an October 2024 meeting, Brooklyn College administrators informed faculty that, following an OCR investigation and voluntary agreement at the school, any student allegation of discrimination—even if it concerned a post on a private social media account—could result in professors being called in to discuss the complaint with higher-ups, according to two professors present at the meeting. Such shifts in policy “can be extraordinarily chilling and even McCarthyite, as schools haul students and professors in for questioning over the most threadbare or even unsupported accusations,” Sainath said. Other agreements went even further in diluting free expression protections. In August, as part of a mediated agreement with the Zionist legal group the Brandeis Center to resolve an OCR complaint, North Carolina State University agreed to amend its non-discrimination policy to include the IHRA definition of antisemitism—demonstrating how Israel advocates can use the Title VI complaint process to achieve long-held goals on college campuses.
Free speech advocates say that the only way to stop the misuse of Title VI would be for OCR to release specific guidance that deters schools from practicing censorship. “OCR blew its chance to issue clear guidance stating that students have the right to call for full equality, or to single out Israel for criticism,” Sainath said; the agency has compounded these moves with “formal and informal guidance that has encouraged more baseless Zionist complaints and allowed universities to double down on repressing speech.” Instead, she said, the OCR needs to clarify that they “are rejecting IHRA, and that criticism of Zionism is protected speech under the First Amendment.” Nunberg, the former OCR lawyer, agreed on the need for clear guidance, adding that the department should clarify how it views specific phrases like “from the river to the sea,” given their centrality to the debate over Title VI. “I think it’s important for OCR to address head-on whether they consider statements like ‘from the river to the sea’ to be political speech or to create a hostile environment,” Nunberg said. In the absence of clear guidance, “draconian punishments have been unleashed on students, such as calling in state troopers in riot gear,” at least in part because of the “assumption that ‘from the river to the sea’ is an inherently antisemitic statement.’” (When asked about such critiques, Lhamon said, “I like the guidance that we’ve issued. I think it’s good.” She added: “we have issued more guidance on this topic than any prior administration.”)
As the flood of Title VI complaints creates pressure on schools, Zionist groups are also using another, faster process to amplify it: Since October 2023, pro-Israel Jewish students have filed a total of 15 federal lawsuits against 12 universities, alleging that their schools committed Title VI violations. Such suits must meet a higher threshold than OCR complaints; plaintiffs need to convince a judge that the institution they are suing had actual knowledge of harassment and was deliberately indifferent to it. On the other hand, in contrast to a voluntary Title VI agreement, in which the school does not have to admit violations of the law, a lawsuit can result in a court order declaring that a university did discriminate. And whereas OCR investigations can take years to resolve, the relatively rapid turnaround on federal lawsuits is attractive to those looking “to put immediate pressure on the school to punish speech,” Sainath said. As Lakier summarized it: “A lawsuit actually gets you more if you’re successful.” A case in point is New York University, which settled a lawsuit in July after agreeing to undisclosed monetary terms, creating a new Title VI coordinator position at the school, and updating the section on antisemitism in the student code of conduct. In August, NYU announced that it would change its conduct guidelines to prohibit harassment targeting “Zionists,” in addition to harassment against Jews or Israelis, a decision that drew criticism that NYU was equating criticism of Zionism with anti-Jewish bigotry.
Even when plaintiffs lose Title VI lawsuits, as they did at MIT in August, the cases may still accomplish what they set out to do, said Lakier. “The Barnard situation is a great example of how even the existence of a lawsuit [somewhere] might have the effect of chilling speech, or on the willingness of administrators to tolerate certain kinds of speech, because it’s creating a whole set of examples of the kinds of things that you could potentially get in trouble for doing,” she said. Lakier argued that the lawsuits are not legally sound, but noted that that may not interfere with their intended purpose. “These lawsuits are operating in a political environment in which they want to be able to turn the political disagreements—about whether Israel is a colonial oppressor, or whether what’s happening right now is genocide—into questions of discrimination and harassment,” she said. “These risk-averse university administrators, who do not want to get in trouble in any way, or lose donor funding, or get bad publicity, are going to think that the easiest way of avoiding a bad outcome is to repress speech that somebody says violates Title VI.”
Israel advocates hope that a new Trump administration will help them build on their successes, enforcing Title VI even more vigorously. As Trump’s second term in office approaches, such groups are calling for increased funding to help the DOE combat what they define as antisemitism; they have also demanded the issuing of DOE regulations on how to enforce Trump’s 2019 executive order. “We will urge the Trump Administration to continue to reach resolution agreements and enforce existing agreements,” an ADL spokesperson told Jewish Currents, and “will continue to call for the [DOE] to be equipped with the resources necessary to protect Jewish students and faculty on campus . . . so that the Department of Education has the full capacity to investigate complaints alleging antisemitic harassment and discrimination.” Roz Rothstein, the CEO of pro-Israel group StandWithUs, concurred. “StandWithUs expects that the DOE-OCR will continue its consideration of the international consensus IHRA definition in its investigations, and apply efficiency and careful scrutiny to the allegations of antisemitism in the complaints it receives,” she said. “We look forward to any changes that . . . hold certain schools accountable for failure to enforce their own rules.”
The ADL and allied groups’ push to use Title VI to target anti-Zionist speech has ample support in Congress, where members have advanced a range of measures to supercharge the statute’s repressive utility. One such bill, introduced in April in response to pro-Palestinian protests at Columbia, would allow the DOE to install an antisemitism monitor at any college or university receiving federal funding. The monitor would publish public reports detailing the progress universities have made in combating alleged antisemitism, and would provide an annual report to Congress recommending policies and sanctions the DOE and Congress should pursue in response to what they call antisemitism. Another bill, introduced in July, would impose increased fines on, and potentially revoke the tax-exempt status of, universities found to be in violation of Title VI. While neither of these bills has received a vote so far, a third measure has advanced farther: the Antisemitism Awareness Act, which mandates that the DOE, while investigating Title VI complaints, consider the IHRA definition when determining whether a school presents a hostile environment for Jewish students. The bill was passed by the House of Representatives in May; while the Senate has yet to take up the bill, the office of Democratic Senate Majority Leader Chuck Schumer said he planned to bring it up for a vote before the end of the year. “These members of Congress are looking at the situation and saying that universities clearly have too much wiggle room on how they deal with protesters and what they do and don’t consider antisemitism,” said Lara Friedman, president of the Foundation of Middle East Peace. “The legislation is intended to remove that wiggle room.”
Analysts say that the effort to remake civil rights law as a silencing tool could accelerate even further if Trump follows through on his pledge to upend the DOE. During his campaign, Trump promised to abolish the department entirely—a call echoed in Project 2025, the Heritage Foundation’s blueprint for the incoming Trump administration, which recommends that the Department of Justice take over OCR. “The DOE conceives of itself as promoting the healthy functioning of the American educational system,” Lakier said. That mandate can sometimes come into tension with aggressive enforcement of Title VI. By contrast, she noted, the DOJ’s core mission is law enforcement, which fits much better with the right’s attempt to use Title VI as a punitive tool against protesters.
Ultimately, Lakier said, a Trump OCR—whether it’s housed at the DOE or the DOJ—will be equipped with the tools to put unprecedented pressure on schools, pushing them to crack down on pro-Palestinian activism. “Federal funding is a powerful weapon that the federal government has used in the past to shape university decision-making,” said Lakier, “and there is no reason to think the Trump administration won’t use it aggressively to advance its own agenda on college campuses.”
Alex Kane is the senior reporter at Jewish Currents
