By Sandra Storey / Special to the Gazette
Campus demonstrations in response to the Israel-Palestinian conflict last academic year were accompanied by lots of accusations of antisemitic language being directed at Jewish people and/or groups. Complaints were also lodged saying people spoke discriminatorily about and to Muslims and related groups, too.
College administrations reacted in a variety of ways, frequently incompletely, according to: codes of civil behavior; state and federal applicable civil rights law; and even according to their own written institutional processes for investigating and processing such complaints.
Three prestigious college presidents, two of whom resigned since, testified in Congress in December, 2023 that if discriminatory insults “go beyond speech” on campus, they take action. That was wrong, according to law and even according to their college’s own websites.
Discriminatory insults alone can and often should prompt action in and of themselves.
Although there are fewer college demonstrations so far this year and even fewer encampments, it’s good to look closely at what happened so both protests and speech issues are dealt with knowledgeably by the many parties both involved and affected. We don’t want some of the unwise behavior to happen again. And the protests seem to bring out overall college/world issues that need further examination.
Over the summer, both the United States and Massachusetts Departments of Education made good starts at issuing some guidelines and resources for colleges during tense times like these in the country and the world.
Though some people love to firmly declare, “Freedom of Speech!” in response to talk of regulation, speech that targets some people and groups in and of themselves has been against the law for decades.
In addition to regulations against fighting words and threats, there’s discriminatory speech, harassing speech, and antisemitic speech (when applied to Jewish people and Judaism). No matter what it’s called formally or casually, these types of speech are generally not allowed in this country. The term “hate speech,” though used by many, is not used as a legal term by the federal government.
Confusion about speech on college campuses last academic year reflected differences in details on the topic in complex civil rights laws and regulations at all levels and various departments of government as well as at institutions like colleges and businesses.
Professional organizations and non-profits also have their own points of view. The public and media seem confused by all those sources as well as lack of basic education on the topic at times.
For example, each entity that creates and interprets civil rights laws often names “protected groups,” basically stating on what identity grounds certain people cannot be treated negatively in that milieu.
According to federal law, discrimination—including discriminatory speech—in education is forbidden if it is based on race, color, or national origin. Notes in U.S. Department of Educations (DOE) documents add to its list of protected classes “or a person’s actual or perceived shared ancestry or ethnic characteristics, including membership in a religion that may be perceived to exhibit such characteristics (such as Hindu, Jewish, Muslim, and Sikh individuals).”
Title VI and other laws and regulations govern federal civil rights in higher education. These federal anti-discriminatory laws apply to any college or university that receives any federal funding—including grants and/or tuition help for students—which is most of them, according to experts.
No matter what colleges and universities say their institution’s individual policies about discriminatory speech are, they must abide by applicable federal (if they and/or students receive any federal funds) and state laws.
Massachusetts, like other states, has its own, longer list of protected classes when it comes to higher education and its own civil rights laws, similar to the federal ones. Massachusetts law prohibits discrimination on the basis of a person’s membership in a protected class, such as race, color, national origin, ancestry, religious creed, disability, sex, age, sexual orientation, familial status, veteran status, criminal record, and gender identity/expression.
Emerson College, like other higher education institutions nearby, including Harvard, MIT and Northeastern, that hosted protests last year, has a written code spelling out how discriminatory speech is to be handled on its campus.
As part of that, it has its own list of additional classes against which slurs are not allowed: ethnicity, sex (under Title IX), pregnancy, sexual orientation, gender identity/expression, including transgender identity, religion, disability, age, genetics, active military or veteran status and any other characteristics protected under applicable federal or Massachusetts law…”
“What began as a student demonstration two days ago, was infiltrated by professional organizers with no affiliation to Northeastern,” Renata Nyul, vice president for communications at the university said in a statement reported by local CBS News on April 27.
“Last night, the use of virulent antisemitic slurs, including ‘Kill the Jews,’ crossed the line. We cannot tolerate this kind of hate on our campus,” a written statement by Nyul was quoted as saying by WGBH.
The next morning police from Northeastern, Boston, state and the Suffolk County Sheriff’s office, in full riot gear, cleared out the encampment of about 100 people. People with Northeastern student IDs were not arrested, but many more people did not produce them and were.
Some students in the encampment told media that the people yelling the slur were in a pro-Israel group, as reported by CBS and WGBH. Others said the people chanting were from other nearby colleges.
Nyul said that didn’t matter. “Any suggestion that repulsive antisemitic comments are sometimes acceptable depending on the context is reprehensible,” she said in a statement.
Confusing jurisdictions
As if the variety of laws and rules against threatening speech (and the other terms for discriminatory speech against protected groups, including antisemitism) were not confusing enough, the fact that higher education institutions can each have their own detailed rules of conduct regarding hate speech and processes for dealing with alleged violations can really mix everyone up. Government also has processes for dealing with these civil rights laws. Complaints can officially be filed with the college where the offense allegedly occurred and/or with a number of government law enforcement entities.
Emerson College says the college and police have “concurrent jurisdictions” regarding hate speech. Most colleges have that same awkward relationship with law enforcement.
As we know, when any two parties have independent but similar responsibilities, it is very difficult to keep everything organized well and have necessary prompt communications.
That’s what happened at many colleges with protests last academic year. People with complaints just sort of complained informally, though often vociferously to whomever would listen, and no investigation into what was said happened or anything else official was reported. A few complainants reportedly sued.
Those haphazard responses to hate speech allegations on many compuses should never happen again.
Until the 1960s, colleges and universities could and did operate “in loco parentis,” i.e. they acted in place of parents and tried to make sure students felt “safe” and set down rules and acted like parents. In loco parentis is now not allowed, according to federal and most state laws, including Massachusetts.
Nowadays, when it comes to both verbal discrimination and sexual assault charges, colleges and universities can and do act in what could be called “in loco juris,” i.e. in place of, or in addition to, the legal system. That needs to be stopped now, as well.
Concurrent jurisdictions also apply when it comes to allegations of sexual assault. Once again, students can report alleged discrimination to a designated college staff person or to the police. Provisions for colleges dealing with this serious crime are in Title IX, of all places—the same Title IX that “protects any person from sex-based discrimination” and is often mentioned in connection to college sports.
These duplicate responsibilities between colleges and law enforcement, though traditional, are not a good idea any more, if they ever were. Laws—be they about civil rights or violent crimes— need to be enforced and adjudicated in the established, expert legal milieu where objectivity and quite a bit of transparency and anonymity are pillars of justice.
Higher education institutions do not have the training, structure, time, resources, and energy—not to mention the fundamental mission—to properly carry out investigations, hearings, findings, and collections of evidence, etc. required.
Dealing with general principles and specifics of enforcing laws is not a good goal for higher education institutions, faculties, students or for our society.
Having a college and a police force that can both deal with allegations of violations of the law is a recipe for confusion and injustice. Some colleges and their local police departments have Memorandums of Understanding to try to sort out their roles, especially in sexual assault cases. It still seems awkward and extra time and energy consuming.
We as a society cannot allow private entities for which there is no direct, official government oversight in their legal role to attempt to enforce and adjudicate laws in a professional, transparent and objective way. The concurrent jurisdictions set-up isn’t fair to students, colleges, law enforcement, or society itself
“Safety”
The subjective word “safety” comes up often in discussions of campus discrimination. Anyone who says they have been made to feel “unsafe” on campus (or anywhere else for that matter) needs to be specific about incidents so the behavior can be investigated objectively, according to Civil Rights laws and regulations, with the goal of resolution.
Some speech—called “discriminary” speech” and also called “antisemitic” speech when directed to Jews or Judaism—is considered to be harassment of a person or persons in what’s known as a “protected class.”
It is never legal to advocate in speech or writing for the total elimination of a protected class. That is not only discriminatory; it’s also considered to be “genocidal” when applied to people or entities that share geography, religion, nationality, ethnic group, nation, or ancestry, according to international and U.S. law.
Specific, documented behavior, especially by nations taking official actions, can certainly be criticized. It’s considered discriminatory only if an entire protected class itself is directly slurred or threatened.
Some people and media outlets have quickly and casually called any rules about protests and speech around them “violations of the First Amendment freedom of speech clause in the Constitution.” Having rules and laws about speech doesn’t necessarily stifle it. Sometimes they make it easier to both express and take in ideas and information.
A number of colleges and others around the country seem to love to say that the First Amendment and the rest of the Constitution do not apply to private colleges, because they don’t get federal funds.
According to Binnell Law Group, “virtually every private college receives some form of federal funding. This includes: Federal student loans.”
As came up during Israel-Hamas protests on campuses, a person or group can’t harass someone in speech or writing (or do other discriminatory or violent behaviors, of course) because of their identity as a member(s) of a protected class.
Colleges and universities certainly don’t have an easy time when it comes to protests about the Israel-Palestinian conflict. Though the temptation may be for them to forbid protests or make them ineffective with overly stringent rules, they cannot do that as a way to block the chance of discriminatory speech occurring.
Freedom of speech and the free exchange of ideas require colleges to permit students to assemble to express themselves AND to police what is said so it’s not discriminatory (e.g. antisemitic) and, if it seems to be, taking action against it.
Useful guidance
Both the United States and Massachusetts have Offices for Civil Rights (OCR) within their Departments of Education (DOE). The U.S. DOE Office for Civil Rights has a Boston office. Their guidance documents here or links to them can be found online.
U.S. DOE was very busy this past summer and early fall issuing lots of helpful information regarding campus protests:
• “A Campus-Toolkit:” “Free to Learn: Leading Inclusive Learning Environments in Higher Education: A Resource Guide…for fostering safe and inclusive campuses through the Hamas-Israel conflict and beyond,” a 12-page, illustrated booklet chock full of useful information available online since July 29 this year.
• “Fact Sheet: Harassment based on Race, Color, or National Origin on School Campuses.”
• “Supporting Educational Environments Free from Discrimination.”
• U.S. DOE, U.S. Department of Justice, and the Department of Homeland Security had a webinar on July 31 about a range of campus safety topics, including verbal discrimination.
This past spring, the Massachusetts Department of Higher Education (DHE) posted thoughtful, expert guidance for institutions of higher learning regarding management of protests and accusations of bigotry in the midst of the Israel/Hamas war, according to civil rights laws and regulations. See:
“Resources for Addressing Hate and Protecting Free Speech on Higher Education Campuses” on its website. This site gives resources for getting answers to many important questions, including: What should students, faculty, administrators or even community members do if they feel they or someone they have observed is the victim of discrimination, including verbal harassment:
“In case of emergency or a potential hate crime in progress, individuals should immediately report the incident to campus safety, local law enforcement, or call 911. Individuals who witness or are victims of a hate crime can also file a civil rights complaint with the Attorney General’s Office or call the office’s special hotline at 1-800-994-3228. Likewise, campus administrators who suspect that a hate crime has been committed on or within their campus communities should promptly reach out to and consult with the Massachusetts Attorney General’s office and/or the Massachusetts U.S. Attorney’s office…—Massachusetts DHE.
The Massachusetts State Police have put out written notice that: “…it is the policy of the Department to assure full compliance with [civil rights laws] in all programs and activities…Any person who believes they have been aggrieved has a right to file a formal complaint…”
DHE hosted an FBI briefing on Sept. 4, billed as a “law enforcement only” briefing
on the topic of “Protests/Unrest on Campuses.”
Real education
State and federal education departments and civil rights experts have begun efforts to help colleges deal with protests and civil rights. More intervention and education are desperately needed, the sooner the better. All parties to discussions about the Israel-Palestinian conflict need to know how to speak about it and to one another lawfully.
Recent experience shows us that colleges—the sites of many controversial protests themselves— have appropriate educational missions and wherewithal to work with government and experts to educate the student body and everyone else on campus about the laws around protest and speech as well as the proper processes to enforce those rules. An added service by higher education institutions would be to also invite media and the community members to seminars on the topic.
University of Pennsylvania students are being encouraged by a college task force to talk about how they feel about what’s been going on around the protests, especially accusations of discriminatory speech.
It’s good to talk about feelings, for sure. But it’s not appropriate, especially on the campus of a higher education institution, to talk first about emotions before learning from experts about rights and laws that apply to expressing ideas and opinions in a safe, respectful atmosphere as well.
Some colleges have advocated and held seminars about the Israel-Palestine conflict and history. That’s good, but knowledge of what’s the legal, constructive way to talk about that, or any controversial topic for that matter, needs to be acquired first.
Sandra Storey is Publisher Emerita of the Jamaica Plain Gazette.