When College Antisemitism Breaks the Law

The First Amendment is not a complete defense for pro-Palestinian protestors in American colleges.

The number of violent pro-Palestinian demonstrations over the war in Gaza that roiled U.S. colleges has declined significantly in this academic year. Universities have improved their enforcement of civil rights laws and student codes of conduct. Nevertheless, malevolent protestors, students, faculty or visitors continue to harass Israeli and Jewish students, forcing college administrators, the Department of Justice, and federal and state court judges to determine when those delinquents cross the line from speech, however distasteful, to lawlessness.

A February 5, 2025 preliminary decision in a federal court case against Cooper Union College analyzed the harassment issue. The ruling identified the point when an antisemitic protest creates a “hostile educational environment” in violation of Title VI of the Civil Rights Act of 1964.

Title VI makes educational institutions that receive federal funding responsible to protect their students from harassment based on characteristics such as race, religion, or national origin. Successive administrations have identified discrimination on the basis of actual or perceived shared Jewish ancestry as a form of national origin discrimination. When pro-Palestinian student demonstrators engage in genocidal chants such as “Globalize the intifada” or “From the river to the sea Palestine will be free,” the antisemitic hate speech may be protected by the First Amendment as political speech. However, if the verbal and/or physical aspects of this arguably protected speech grow so severe or pervasive that they limit the victimized students’ ability to participate in an educational program or activity, and if the college administrators display indifference to the danger, the school may be found to have tolerated a hostile educational environment. Such a finding would exempt the conduct from First Amendment protection. The key question of fact is whether the harassment is “physically threatening or intimidating” to the targeted students based on “the totality of the circumstances.”

The preliminary order in Cooper Union found that the Jewish petitioners had raised a plausible claim of hostile educational environment. The ruling forced Cooper Union to submit a detailed response to the allegations.

The Cooper Union plaintiffs alleged the following. Pro-Palestinian students at the school stormed a campus building while waiving Palestinian flags and screaming “It is right to rebel, Israel go to hell,” “There is only one solution: intifada revolution,” and “From the river to the sea, Palestine will be free.” In addition, they defaced the windows of the building with signs that championed the terrorist group Hamas’ October 7, 2023 brutal invasion of Israel. The agitators then surrounded a group of identifiably Jewish students who were locked inside the building library and angrily banged on the locked doors and the large floor-to-ceiling windows demanding to be let in, placing the trapped students in fear of physical attack. Vandals tore down posters showing the names and photographs of Israelis taken hostage by Hamas in the Gaza war. The Cooper Union administrators did nothing to disperse the protestors or discipline them later. The judge determined that these allegations, if true, would constitute actions that were physically threatening or intimidating to the Jewish students, and therefore warranted further judicial review, despite the school’s claims that the actions in question were protected First Amendment activities.

In light of the Cooper Union ruling, a college may be liable for the harm caused by a student protest based on the severity of its harassing conduct, despite the protected nature of political speech.

Other colleges have been forced to, or have on their own, remediated instances of antisemitic hostile educational environments, while noting First Amendment concerns. For example, an August, 2024 Columbia University task force established a program to combat antisemitism after pro-Palestinian students shoved and pushed Jewish students to the ground, burned Israeli flags, drew swastikas in the dorms, and denied Jews and Israelis access to a campus building. Also at Columbia, an anti-Zionist group flooded the toilets of an academic building with concrete. The school is now one of four universities subject to a congressional investigation of their antisemitic abuses.

Also in August of 2024, a federal court issued a preliminary injunction ordering the University of California, Los Angeles (UCLA) to ensure equal access to UCLA’s Jewish students after pro-Palestinian protestors blocked them from accessing places on campus.

More recently, UCLA suspended two Students for Justice in Palestine organizations after masked SJP members staged a protest at the home of a Jewish UC regent. The students smeared their red-painted hands on the exterior walls of the home, hung political banners on the hedges, and surrounded the regent’s wife while she was in her car.

In September 2024, the University of Illinois promised specific reforms to combat antisemitism when it signed a “resolution agreement” with the Department of Justice, Office of Civil Rights. The school’s pro-Palestinian students had thrown a brick through the window of a Jewish fraternity, stole mezuzahs from the doorways of certain dorm rooms, and carved swastikas into the walls of various campus restrooms.

Earlier this month, Bowdoin College suspended student protestors for erecting an unauthorized “Gaza encampment” in the student union building and ignoring administration warnings to leave.

The above-described incidents create antisemitic hostile educational environments, even when protestors claim to be exercising their First Amendment rights. Jewish and Israeli students need not tolerate discriminatory harassment that disrupts their participation in college life. The law is on their side.

ABOUT THE AUTHOR

Joel M. Margolis is the Legal Commentator, American Association of Jewish Lawyers and Jurists, U.S. Affiliate of the International Association of Jewish Lawyers and Jurists. His 2021 book, The Israeli-Palestinian Legal War, analyzed the major legal issues in the Israeli-Palestinian conflict. Previously he worked as a telecommunications lawyer in both the public and private sectors.