By Benjamin Schenk, Esq. and Dr. Mark Goldfeder

October 7th, 2023, marked an epochal moment in history with ramifications well beyond the Middle East. What has resulted is a multi-front war being waged on unconventional, domestic battlegrounds: college campuses, highways, social media platforms, and more. At the unwilling center of it are Jews and those who support their right to a harassment-free existence.

Americans of all stripes are now asking the question^[1]: if college administrators are unwilling, unable, or unequipped to effectively respond, what role, if any, can civil attorneys play in upholding the rule of law and combating an ideology seemingly hell bent on destroying it? We believe that trial lawyers represent one of our societies’ last hopes to do so.

Judaism and Jewish identity contain multitudes of meaning. For some, it serves as a religion, for others an ethnicity, national origin, culture, and/or race. And, because Jewish identity is so potentially multifaceted, (incorporating, as it does, all these different aspects of what Judaism means or may mean) for far too long it has been far too easy for antisemites to hide behind this ambiguity by committing antisemitic acts, then claiming it was not antisemitism because it was not based on this or that particular characteristic. The most common scenario is for antisemites to hide their hatred behind some thinly-veiled excuse, and say it has nothing to do with Judaism, only [fill in the blank]. But antisemites do not get to define what antisemitism means.

The fact of the matter is that much of today’s Jew hatred actually has nothing to do with religious practices. Many who espouse modern anti-Semitism—including those who self-identify as Jewish—do not blockade highways, spit on or flat-out bully and harass their fellow peers on college campus because they hate the fact that Jews celebrate different holidays, wear different religious garb, or abide by a different set of dietary restrictions.

Today’s antisemitism, like all previous forms, is a mirror of society’s dissatisfaction with itself and a desire to blame someone, anyone, and conveniently the Jews. It’s as much a generational response to America’s rent-burdened youth, riddled with hundreds of thousands of dollars in student loan debt and entering an economic world marked by relatively lower growth than that from which their parents and grandparents directly benefited. The economic pie is not growing like it used to. In this sense, Jews, a group that many perceive has historically outperformed other cultural groups despite their low numbers, have yet again become convenient scapegoats for those feeling left behind or, indeed, oppressed.

To illustrate this point, look no further than actual recent and active genocides that have occurred without so much as a peep from those who now cry oppression and blame Jews for their own misanthropy. How many bridges in the West were blocked from a Saudi-backed, Arab coalition’s starvation of over 85,000 Yemeni children emanating from a November 5, 2017 blockade of all fuel shipments to Yemen?^[2] How many in the West have taken to the streets to decry the mass internment of the more than 1 million Uyghurs and other Turkic Muslims, the largest detention of ethnic minorities since World War II, in China’s Xinjiang internment camps?^[3] Modern anti-semites single out Israel, not for what they do, but for what they are and represent; the Jew among the nations. And now their hatred spills out on American college campuses and streets because they hate Jews for their real or perceived racial or national origin identity.

For many years, Judaism’s multidimensionality and the corresponding manifestations of antisemitism created definitional complexity for the Department of Education’s Office of Civil Rights OCR (“OCR”) to investigate claims of anti-Semitism. In 2004, OCR announced the Marcus Doctrine, recognizing that Jews and other religious groups should fall under the jurisdiction of the Title VI of the Civil Rights Act even though that law does not protect religious groups on campus, because Jews are not just a religion. As the OCR explained, “[G]roups that face discrimination on the basis of shared ethnic characteristics may not be denied the protection of our civil rights laws on the ground that they also share a common faith.[4] But even after this clarification, there was one additional problem for OCR; because Jewish identity and the corresponding manifestations of antisemitism are so multifaceted, without a standard definition to use as a reference, it was still too easy for antisemites to hide behind this vagueness, commit horrible acts that targeted Jews, and then claim their actions were not antisemitic because they were not based on this or that particular characteristic. That led to an equal protection problem that still lingers to this day and is a contributing factor in the high rates of antisemitic incidents we are witnessing.

Then, on December 11th, 2019, the Trump administration announced Executive Order No. 13899, which codified the now-longstanding rule that Jewish students are protected against anti-Semitism for the purposes of Title VI discrimination claims. More importantly, it also clarified that when the department evaluates these claims, they should use the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism. The IHRA definition was incorporated as a guide by the US State Department as early as 2007, unofficially adopted in 2010 and formally adopted in 2016 after it was accepted at a plenary meeting of the then 31 countries in the IHRA, including the US.

Since it was first devised by a team of international and cross-disciplinary experts in the early 2000’s, the IHRA definition has been an essential definitional tool in helping dozens of countries and over 1100 worldwide entities determine contemporary manifestations of antisemitism. It includes the explicit caveat that criticism of Israel, similar to that leveled against any other country, is not anti-Semitism. But it also includes some very helpful, useful examples of the kind of discriminatory anti-Zionism that can sometimes cross the line.

Today, as anti-Semitism skyrockets across the country^[5], faith in American higher education is cratering. No matter how you slice the data—by political party affiliation, age, gender, and educational attainment—since 2015 confidence among all demographic groups is at an all-time low.^[6] The aftermath of 10/7 accelerated why so many have lost faith in the institutions and the administrators who oversee them. Blindly trusting College officials to enforce their professed free speech policies evenly across protected classes of students has simply proven both ineffective and dangerous.

Early civil actions against NYU, Harvard, and Berkeley, amongst others, as well as OCR investigations opened by the Department of Education at the University of Minnesota, Tulane, Temple University, Ohio State University, Muhlenberg College, Union College, Wellesley College, and University of California San Diego, among many more, show that the crisis is profound and real and potential plaintiffs are serious about these cases. They should be.

The facts coming out from schools across the country are no longer even shocking, though they should be. Sadly, they have become standard fare. It therefore behooves the average attorney to understand a little more about the landscape of their potential involvement.

Any school that takes federal funds signs an annual Title VI release form promising that the school will abide by all of the implementing regulations under Title VI. On a practical level, this means that they are all bound by the IHRA definition, whether they like it or not. So if, for example, a school says that attacking a Jewish student for supporting Israel is not antisemitism—that’s just politics—the answer to that claim is simply “no,” according to Executive Order No. 13899. And if a pattern of antisemitic behavior exists on a particular campus, then the time is now to consider a Title VI complaint.

Whether filing a complaint with OCR or a federal lawsuit under Title VI, one should be prepared for the likely set of responses and excuses from college administrators. The schools will first respond by saying that nothing can be done because hate speech is protected free speech. And while that statement as a stand-alone idea—divorced from the reality of the claims—is itself true, and while freedom of speech, including offensive and hateful speech must be protected, limits exist as to what constitutes protected speech, and when that speech crosses over into actionable, unlawful conduct.

The First Amendment is not a free pass to threaten, harass, intimidate, or otherwise violate the rights of other people. The First Amendment does not protect against garden variety tort claims such as battery, assault, trespassing, vandalism, harassment, defamation, negligent infliction of emotional distress, or the destruction of property. And to be clear, we have seen examples of all of those on campuses across the country over the last few months.

Nor does the First Amendment protect speech that is not intended to inform or persuade, but rather to disrupt lawful endeavors; activities like studying in a library, which is what happened when students were attacked at Cooper Union.[7] Even when the conduct in question involves speech, said speech becomes harassing conduct when it “severe[ly], pervasive[ly] or persistent[ly]…interfere[s] with or limit[s] a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.”^[8]  

The First Amendment also does not protect someone who makes true threats, defined as statements where the speaker means to communicate a “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”^[9] That happened at Cornell.^[10] Nor does the First Amendment protect intimidation, which is a type of true threat where the speaker directs the threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Last summer, the Supreme Court clarified that the intent standard for intimidation is not that the person speaking actually intends to threaten the victim; rather, the speaker must consciously disregard a substantial risk that their communications would be viewed as threatening violence.^[11] All of the above has occurred on American campuses in recent weeks, if not days.

But the problem here is actually somewhat more acute.

If you watched the president of MIT and former presidents of Harvard and the University of Pennsylvania testify to Congress about why they were not protecting Jewish students, the truth is that their floundering was less their fault and more the fault of the lawyers sitting behind them, who provided them with the wrong legal standard to defend.

By way of background, of course, there is no First Amendment protection for speech involving actual incitement of violence, which the Supreme Court in Brandenburg vs. Ohio explained includes speech that incites or produces “imminent lawless action, and is likely to incite or produce such action.”^[12] But Brandenburg is famously a very high standard, and that is precisely where the universities are getting it wrong.

Schools are telling students and parents—and this is what the presidents tried to tell Congress—that their hands are tied because, in most cases, there has not been sufficiently direct actual incitement to violence.

Now, the truth is that, even under Brandenburg, clear and applicable limits exist. For example, schools can, and should impose reasonable time, place, and manner restrictions on expression. Thus, even under the Brandenburg paradigm, a rally or protest could violate school policy without offending the First Amendment if it disrupts or undermines the educational enterprise and functioning of a school.

But with all of that said, Brandenburg is simply the wrong standard for universities to use when it comes to their First Amendment defenses. In Tinker vs. Des Moines, the Supreme Court found that the Constitution allows for schools, in particular, to shut down speech that “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school” or invades the rights of others.^[13] Tinker is the standard that these universities should be vigilantly enforcing, and defending. Now, of course, private colleges and universities can, in most cases, restrict certain speech, conduct, and demonstrations without triggering any constitutional issues. But we must remember that even a public university is not a public street. The rules for what speech must be allowed on each are very different.

In 1972, the Supreme Court in Healy v James cited the Tinker case to hold that university officials do not have to tolerate student activities that breach reasonable campus rules, interrupt educational processes, or interfere with other students’ rights to receive an education.^[14] The Court has also consistently found that this is especially true when the student speech is happening in school sponsored forums, or is reasonably perceived as in some way bearing the imprimatur of the institution. Further, schools have even greater latitude to limit student expression if they can establish a legitimate pedagogical concern.^[15] Ensuring that all students, including Jewish students, have a safe and harassment free environment in which to learn is (or at the very least should be) an overwhelmingly legitimate pedagogical concern.

In fact, the law goes even further: Schools do not even have to wait for a “substantial disruption” to actually occur. They can ban potentially disruptive expression if they can reasonably forecast that the speech in question would disrupt school discipline or operation, or if it would violate the rights of other students. Again, citing Tinker, in Melton vs. Young the Sixth Circuit ruled in favor of school officials who prohibited a student’s wearing of a Confederate flag jacket because it was reasonable to assume that it would lead to “substantial disorder” in a school environment during a period of heightened racial tension.^[16] We cannot count the number of Hamas and ISIS flags that students continue to proudly brandish on campuses, much less all of the cheering on of the slaughter that Hamas did, or the horrible announcing that rape and torture and murder are legitimate when committed against a particular group of ancestral origin. All of those are certainly no less likely to cause a disruption than a jacket, and schools must be willing to stand up and say that.

General damages are available for cases involving battery, assault, defamation, and emotional distress. If schools display reckless disregard so great that it appears to consciously violate another person’s right to safety, then they could also be liable for punitive damages for those same garden variety tort actions.

In a Title VI context, if a university knows or reasonably should know about an alleged Title VI violation, the school’s duty to investigate is triggered. A direct complaint from the victim is not necessary to trigger the duty to investigate and remediate. The school must take immediate action to eliminate the discrimination/harassment, prevent its recurrence, and address its effects. However, in Cummings v. Premier Rehab Keller, P.L.L.C., the Supreme Court recently held that a plaintiff suing under Title VI may not recover emotional distress damages and may only recover damages under a breach of contract theory.^[17] With this said, attorney’s fees are still available in cases involving Title VI theories and can be considerable.

But the victories here will really go much further than financials; if done properly, the Title VI and similar anti-discrimination cases being brought now on behalf of the Jewish community will ensure accountability and equal protection, and ultimately lead to a more just and equitable society. 

Benjamin Schenk is a trial lawyer with Fell Law, PC, based in San Diego. He primarily practices in the areas of catastrophic personal injury and wrongful death.

Dr. Mark Goldfeder is Director of the National Jewish Advocacy Center.  

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^[1]https://www.wsj.com/articles/protesters-israel-hamas-tort-law-false-imprisonment-lawsuit-a03f2996

^[2]https://www.reuters.com/article/us-yemen-blockade-exclusive/exclusive-saudi-led-blockade-cuts-fuel-lifeline-to-yemen-idUSKBN1E02FP/

^[3] https://www.cfr.org/backgrounder/china-xinjiang-uyghurs-muslims-repression-genocide-human-rights

[4] https://www2.ed.gov/about/offices/list/ocr/religious-rights2004.html

^[5] https://www.politico.com/news/2023/11/05/anti-defamation-league-antisemitism-00125438

^[6]https://news.gallup.com/poll/508352/americans-confidence-higher-education-down-sharply.aspx#:~:text=In%20the%20June%201-22,some%20and%2022%25%20very%20little

[7] https://nypost.com/2023/10/25/news/cooper-union-barricades-jewish-students-inside-library/

^[8] https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010_pg2.html

^[9] Virginia v. Black, 538 U.S. 343, 344, 123 S. Ct. 1536, 1539, 155 L. Ed. 2d 535 (2003)

^[10]https://apnews.com/article/cornell-university-antisemitic-threats-jewish-students-a99394389d7a742412fa171eb8b57160

^[11] Counterman v. Colorado, 600 U.S. 66, 69, 143 S. Ct. 2106, 2112, 216 L. Ed. 2d 775 (2023)

^[12] Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 1829, 23 L. Ed. 2d 430 (1969)

^[13] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513, 89 S. Ct. 733, 740, 21 L. Ed. 2d 731 (1969)

^[14] Healy v. James, 408 U.S. 169, 189, 92 S. Ct. 2338, 2350, 33 L. Ed. 2d 266 (1972)

^[15] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986); see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988)

^[16] Melton v. Young, 465 F.2d 1332, 1335 (6th Cir. 1972)

^[17] Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 142 S. Ct. 1562, 212 L. Ed. 2d 552, reh’g denied, 142 S. Ct. 2853, 213 L. Ed. 2d 1081 (2022)