The Department of Education's Office for Civil Rights recently issued a Dear Colleague letter1 interpreting the term "hostile environment" as utilized in connection with Title VI of the Civil Rights Act of 1964.2 Title VI protects students from discriminatory acts -- potentially including the incidents of antisemitism now plaguing college campuses -- such as harassment of, assault on, and interfering with the passage of Jewish and Israeli students, thereby preventing them from attending classes or studying.
The OCR letter is a well-cited and useful document that makes an important contribution to protecting Jewish and other students who may be victims of invidious discrimination on campus. As a general statement of policy, the OCR letter does not, however, address one of the most visible, dangerous, and controversial activities from which campus antisemitism is emanating: "Gaza solidarity encampments." Those are the make-shift tent cities erected by pro-Palestinian college students, apparently along with outside agitators, to protest Israel's war against Hamas in the wake of the brutal attacks of October 7th.
Are Gaza solidarity encampments creating "hostile environments" under Title VI or are they legal? Based on the OCR Letter, an agency analysis of the issue might consider the purpose of the encampments, the methods they employ, and the impact of their messages.
As applied to antisemitic discrimination, OCR defines "hostile environment" as:
unwelcome conduct [that is directed at] students and school community members who are, or are perceived because of their shared ancestry or ethnic characteristics, to be Jewish ... or Israeli, [and] that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person's ability to participate in or benefit from a school's education program or activity.3
Gaza solidarity encampments are strong and visible manifestations of pressure on universities to join the boycott, divestiture, sanctions ("BDS") movement, which seeks to liquidate Israel as a Jewish majority state, by terminating their academic exchanges with Israel and prohibiting their endowments from investing in companies linked to Israel. However, since the OCR Letter does not explicitly equate anti-Zionism (the belief that Israel should not exist) with antisemitism, it leaves the door open to assertions that severe or pervasive assertions that the world's only Jewish state should be erased may be subjectively offensive but still not amount to discrimination that creates a hostile environment for purposes of Title VI.
Claims brought by Jewish students now pending before OCR and in the courts may resolve this issue. So also may Congressional enactment of a bill called the Antisemitism Awareness Act.4 The Act would have OCR apply the internationally recognized International Holocaust Remembrance Alliance ("IHRA") Working Definition of Antisemitism, which defines as antisemitic denial of the Jewish people's right to self-determination, subjecting of Jews or Israel to different standards than other groups or countries, or demonization of Israel or Jews, such as by claims that Israel's existence is a racist endeavor.
As is the case for other claims of discrimination, the evidence of antisemitism only demonstrates the "context" or "nature" of the harassment. Even if a BDS encampment is judged antisemitic, it may not support a Title VI complaint unless it also impedes Jewish students from engaging in college activities, i.e., is severe or pervasive.
Students or other participants stay in group solidarity encampments (that deliberately obstruct central campus locations), and do so to make their demands hard for administrators to ignore. Under the OCR Letter, the obstructions may not amount to antisemitic harassment unless they limit Jewish student involvement in academic affairs. However, it is hard to take seriously the assertion that these demonstrations are not targeting Jews. Gangs of screaming activists have surrounded Jewish students, chased them, and forced them to barricade themselves in a room. Under the analysis prescribed by the OCR Letter, such physical restrictions should be viewed as harassment because they hinder equal access to education. To the extent the confrontations include pushing or shoving, the case for harassment should be even stronger.
Among the solidarity encampment placards, group chants, and graffiti are incitements to violence. Examples include: "Final solution" (a reference to the Holocaust), "Globalize the intifada" (which invokes waves of Palestinian terrorist attacks on Jews), "Red, black, green, and white, we support Hamas' fight," and "Death to America, death to Israel."5
The OCR Letter cautions that offensive speech does not, by itself, constitute a hostile environment but may, when combined with offensive conduct, promote a finding of hostile environment. According to the Letter, antisemitic speech could include negative stereotypes of Jews, taunts such as "Stop stealing Palestinian lands" and "Go back to Europe," and graffiti featuring swastikas. Under this guidance, calls for violence against Jews would likely reinforce a hostile environment claim.
Adopting the IHRA definition of antisemitism would help determine whether verbal abuse is antisemitic. For example, a message would be deemed antisemitic if it makes "dehumanizing, demonizing, or stereotypical allegations about Jews" or draws "comparisons between current Israeli policy and Nazi policy."
Ultimately, it remains unclear how OCR would evaluate a Gaza solidarity encampment. In order to protect Jewish and Israeli students from violations of their right to access to education, OCR guidance should confront the issue head-on, whether by further clarifying its guidance or through its handling of claims brought under Title VI.
1 Letter of the United States Department of Education Office for Civil Rights, May 7, 2024, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www2.ed.gov/about/offices/list/ocr/letters/colleague-202405-shared-ancestry.pdf.
2 The OCR Letter clarified the requirements of Title VI without creating new law. OCR Letter, p. 3.
3 OCR Letter, pp. 1 and 6.
4 H.R. 6090, Antisemitism Awareness Act of 2023, https://www.congress.gov/bill/118th-congress/house-bill/6090. The bill was passed by the House of Representatives on May 1, 2024, and is awaiting action in the Senate.
5 For examples of solidarity encampment incitements, see Algemeiner, 'I'll F-K You Up'; A List of Attacks, Threats, Explicit Calls for Violence at Pro-Hamas University Encampments," May 8, 2024, https://www.algemeiner.com/2024/05/07/ill-f-k-you-uplist-attacks-threats-explicit-calls-violence-pro-hamas-encampments/;
Antidefamation League, Campus Antisemitism Surges Amid Encampments and Related Protests at Columbia and Other U.S. Colleges, May 1, 2024, https://www.adl.org/resources/blog/campus-antisemitism-surges-amid-encampments-and-related-protests-columbia-and-other; and The Atlantic, Listen to What They're Chanting, May 8, 2024, https://www.theatlantic.com/books/archive/2024/05/pro-palestinian-protests-columbia-chants/678321/.
