Campus Protest Investigations Hang Over Schools as New Academic Year Begins

Dozens of discrimination complaints brought by conservative and pro-Jewish groups after the Oct. 7 attacks last year have spawned lengthy federal inquiries that some worry could chill free speech on campus.

With a new academic year well underway, more than 60 colleges and universities are still under federal investigation over antisemitic and Islamophobic incidents during the campus protests that swept the United States after the Oct. 7 attacks in Israel, according to the Department of Education.

The Education Department’s Office for Civil Rights has opened inquiries into dozens of schools over the past year, checking for violations of Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on ethnicity or race.

Documents released by the department show that around 80 percent of the Oct. 7-related investigations it undertook stemmed from complaints about antisemitism, and that many of those complaints came to the department through conservative and pro-Jewish legal advocacy groups, including several founded by high-ranking former Education Department officials.

Under federal scrutiny, which carries the risk of losing federal funding, dozens of schools still facing government inquiries have moved quickly to pre-empt large campus disruptions and enforce stricter limits on certain types of speech and demonstrations.

But with anger simmering on college campuses about the violence in Gaza ahead of the first anniversary of the Oct. 7 attack, the volume of unresolved investigations has worried some civil rights experts who warn that pressure from the department could make school administrators eager to shut down protected speech.

‘Administrators listen to this’

As campus demonstrations began to roil college campuses last year, a network of conservative and Jewish advocacy groups — such as the Brandeis Center, the Defense of Freedom Institute, StandWithUs and the Lawfare Project — mobilized, lodging complaints against many prominent colleges and universities.

The Education Department does not require that a Title VI complaint be brought by the victim of a campus incident, and will open an investigation into incidents flagged by third parties on behalf of students.

The Brandeis Center, a Jewish civil rights group that worked with students to file some of the earliest complaints against more than half a dozen schools, was founded by Kenneth L. Marcus, who personally established the policy of expanding Title VI to include discrimination against Jewish students in 2004 while leading the Office for Civil Rights in the Bush administration.

Complaints brought by the Brandeis Center led to investigations at the University of Pennsylvania and Wellesley College.

Last month, the University of Pennsylvania announced that it had created an “office of religious and ethnic inclusion,” the first of its kind, to help enforce Title VI on its campus, partly in response to recommendations released in May by a university task force on antisemitism.

“They do not want to be under federal investigation,” Mr. Marcus said. “They do not want to have to explain to their students, their families, their alumni and their supporters that the actions that they have taken have brought them under this sort of scrutiny.”

“Administrators listen to this — boards of trustees pay attention,” he said.

The Defense of Freedom Institute — a conservative group founded by Robert S. Eitel and Jim Blew, who both served in senior roles at the Education Department during the Trump administration — filed several complaints that led to three other investigations into harassment of Jewish students at Rutgers, Drexel and Yale. From 2005 to 2009, Mr. Eitel also served as the department’s deputy general counsel.

While a majority of complaints cited in open Title VI investigations came directly from students or campus staff who witnessed an incident, some came from those with little connection to the schools and students involved.

Zachary Marschall, the editor in chief of the conservative website Campus Reform, said he personally lodged 33 complaints concerning campus antisemitism between November and January after learning he could do so unilaterally from contacts at the Leadership Institute, a conservative professional network.

Mr. Marschall said he mainly gathered his evidence from news reports and video clips without reaching out to students involved, out of concern that Jewish students who had been targeted might be afraid to speak out.

The department opened 13 investigations in response to complaints Mr. Marshall sent, including into Princeton, Brown, Johns Hopkins University and Swarthmore College.

“I think just the threat looming over them seems to be an effective deterrent,” he said.

Avoiding ‘a repeat’ of last year

During public remarks in August, Catherine E. Lhamon, the assistant secretary for civil rights, said civility on college campuses had reached “a new low.”

Ms. Lhamon also criticized what she described as a “paralysis” among college administrators who she said had been too lax about student safety in the name of protecting free speech.

“I also think that there is an astonishing misconception, that there is some kind of contrast or divide between protecting, respecting free speech rights and not discriminating,” she said. “There is no necessary conflict between respecting and protecting our fundamental free speech rights and protecting every student’s right to be in school.”

But legal experts who have studied the few resolutions the department reached with schools this year say that the department has offered little meaningful guidance for schools to follow in order to comply with Title VI, and appears to be primarily focused on preventing another semester of chaotic protests as the war in Gaza continues.

Earlier this summer, the department announced agreements with Brown, Lafayette College and the University of Michigan, among others, to resolve its investigations. In each case, it found the schools mishandled complaints and failed to maintain a safe learning environment for some students.

But the resolutions place relatively vague requirements on the schools, such as increasing anti-discrimination training and revising school codes to anticipate a broader range of forms that discrimination can take on campus.

“The impression that I think anybody giving these a fair reading would get is that the intent of these settlements and vague letters is to impel university administrators to do something to chill the discussion, debate, protest on their campuses,” said Robert Shibley, a special counsel at the Foundation for Individual Rights and Expression, which focuses on First Amendment rights.

The challenge for the department, several civil rights experts said, is that Title VI was designed to protect against conduct so “severe, pervasive or persistent” that it creates a hostile environment that prevents students from accessing an education — generally a major and systemic failing by a school.

Through its investigations, the department has regularly gone back and reviewed all the reported incidents schools have documented since Oct. 7, which run the gamut of personal arguments, statements posted online, encampments and sit-ins, anonymous graffiti and a range of other interactions, many of which may include constitutionally protected speech.

“You have cases, certainly, involving epithets, slurs, actions that we’d all say are discriminatory, but then you also have situations where the advocacy for a particular point of view is making another group feel uncomfortable,” said Olatunde C.A. Johnson, a professor of law at Columbia. “Those are harder claims to sort out, and the department has to figure out the line, and it’s not clear that it has any special competence in doing that.”

With demonstrations against violence in Gaza already picking up again this fall, many schools are preemptively holding workshops and unveiling stricter protest policies, looking to head off unrest.

And with more than 70 investigations still pending today, Mr. Shibley said he worried that college administrators would feel undue pressure to crack down on political protest.

“I do think there’s an unmistakable signal being sent on this issue, particularly that everybody from Congress to the executive branch would like not to have a repeat of the protests from last fall,” he said.

An uneven portrait of harm

Complaints related to religious identity make up only a small slice of the discrimination reports that the Education Department receives, which also span discrimination based on sex, race and age. The Office for Civil Rights reported receiving over 19,000 complaints across all categories in 2023.

And though it may open an investigation because of a complaint about antisemitism, the department has regularly asked schools to open their books and review whether other forms of discrimination went unaddressed.

When the department concluded its investigation of Brown, for instance, it looked through 75 reports the university received concerning antisemitic, anti-Palestinian and anti-Muslim harassment between October and March. It found the school had failed to protect students in multiple communities.

According to the department, only around a quarter of all investigations opened since Oct. 7 — including in K-12 schools — involve anti-Muslim or anti-Palestinian incidents.

A spokesman for the department said the civil rights office “remains vigilant about ensuring that for every student who needs us, in every school receiving federal funds, the federal guarantee against discrimination is their experience at school.”

But lawyers who have represented students in complaints about anti-Muslim or anti-Palestinian harassment say that the imbalances in the volume of the complaints reaching the department reflect a coordinated effort to make colleges curb political speech, and particularly protests against Israel.

“The strategy is to repress, to make the message go away, and to use that advantage in resources to lean on college administrations however they can,” said Dylan Saba, a staff attorney at Palestine Legal, a civil rights group.

Mr. Saba’s group has filed 10 complaints with the department, six of which led to investigations since April.

While the Education Department says its role in investigating is that of a neutral fact finder acting on the complaints its receives, several civil rights experts said the way Title VI is administered makes it inevitable that politically interested actors can influence the department’s agenda.

“There is always a risk in any kind of private enforcement scheme that people who have more money, more networks, more of just any kind of power, are able to mobilize a process more than other people,” Ms. Johnson said. “This is just a problem in law generally.”