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Hastings Race and Poverty Law Journal

Abstract

A rise in scholarly discussion and campus activism about Israel and Palestine has prompted a wave of civil rights complaints that raise important legal questions under the First Amendment and Title VI of the Civil Rights Act of 1964. This Article reviews the U.S. Department of Education's handling of such complaints focused on traditional forms of constitutionally-protected expression, like nonviolent protest, academic panels, film screenings, pamphlets, and flyers. The Article rejects the central premise of these complaints: that students suffer from a hostile educational environment in violation of their civil rights when a particular country or government with which they may identify is subjected to vigorous critique or academic scrutiny.

The Article further argues that the Department's handling of these complaints contributed to a chilling effect on university campuses discouraging robust discussion about Israel, Palestine, and U.S. policy. The Article argues that the Department of Education's policies are insufficiently protective of First Amendment interests, and proposes the adoption of guidance that would acknowledge the potential chilling effect of federal government investigations, and clarify to recipients of federal funding that speech involving support for or opposition to a government's policies is a form of core political speech, not harassment.

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