The anti-war protests that engulfed campuses around the country over the last academic year have made crystal clear the powerful role that universities play as regulators of political speech—and the corresponding importance of Title VI as a law that regulates speech. Although nominally a statute that regulates racial or ethnic discrimination in education, not speech, Title VI has emerged as the primary legal instrument invoked in court by those on all sides of the student protests to argue that universities should have handled the protests differently. Administrators have also turned to Title VI to justify their decision-making, including their sometimes significant repression of student speech. For example, in April 2024, Columbia University’s then-President Minouche Shafik referred to Title VI to justify her (very controversial) decision to send in the police to break up Columbia’s protest encampment.

Exactly what Title VI requires of university administrators in response to protests like the one at Columbia—protests that make political claims that can be translated into claims about ethnic or religious identity—is a difficult and contested question, which no doubt other contributors to this blog series will explore. But the Department of Education (DOE), which enforces Title VI, has made clear in its recent guidance that university administrators are right to be concerned about their Title VI liability if they fail to take what the department views as adequate steps to regulate how students speak to one another, not only one-on-one but when they engage in collective protest and symbolic action. The DOE has also launched over a dozen investigations into how universities responded to student protests over the past year and reached settlements with several universities over their handling of anti-Semitic or Islamophobic incidents on their campuses. And it has met privately with administrators at schools affected by student protests to advise them about their legal risks under Title VI.

Obviously, the fact that Title VI has come to possess such importance when it comes to the regulation of protest and political expression on campus means that its implementation raises significant First Amendment questions. The DOE guidance documents have acknowledged as much. In its latest guidance document, for example, the DOE insisted (as it has in previous guidance documents) that its enforcement of universities’ Title VI obligations “are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution” and that Title VI “protect[s] students from invidious discrimination” but is not intended to “regulate the content of speech.” But distinguishing between the two is no simple matter.

And how the DOE has recently communicated to universities about their responsibilities under Title VI raises all sorts of First Amendment questions, over and above the question of where to draw the line between discrimination and speech. This is because the First Amendment requires that government actors respect the free speech rights of those they regulate not only when they exercise formal power—by, for example, passing a law or filing a legal claim—but also when they act more informally by, for example, issuing guidance to regulated parties, warning them of legal risks they face, or threatening investigations. In particular, the First Amendment constrains the government from using such informal actions to get regulated parties to themselves suppress the speech of third parties.

Indeed, just this term, in NRA v. Vullo, the Supreme Court unanimously affirmed that administrative actors (in that case, a state financial regulator) can violate the First Amendment when they use guidance documents, settlement agreements, public statements, and threats of legal sanctions to pressure entities they regulate to disassociate themselves from disfavored speakers (specifically, the pro-gun advocacy organization, the NRA). In holding as much, the Vullo Court affirmed (or, really, reaffirmed) that under the First Amendment, “a government official cannot do indirectly what she is barred from doing directly.” In other words, officials cannot use the threat of legal sanctions or other informal tools to “jawbone” private actors into imposing sanctions on speech and association that those officials have no constitutional power to sanction themselves. Despite plenty of concern about jawboning in recent years in the context of government actors pressuring social media platforms to change their content moderation rules, there has been little attention paid to the possibility of jawboning in the context of universities’ management of student speech.

There is, however, good reason to worry that the DOE, in its recent efforts to enforce Title VI in the context of the campus protest movement, may be violating the important First Amendment rule against jawboning—that it may be leveraging its power to regulate discrimination on campuses to get universities to crack down on protected student and faculty speech by threatening them with legal sanctions or investigations if they do not comply. Consider for example the private guidance the agency has provided to universities struggling to make sense of their federal civil rights obligations under Title VI in the face of campus protests. In December 2023, Erwin Chemerinsky and Howard Gillman (the dean of Berkeley Law School and the chancellor at the University of California, Irvine, respectively) reported that the DOE held private meetings at their schools in which officials from the agency advised university administrators that political slogans used at the protests—including “from the river to the sea, Palestine will be free”—likely created a hostile environment for Jewish students in violation of Title VI. This is extraordinary guidance because, as scholars and litigators have noted, the slogan—when used in the context of a protest—is almost certainly constitutionally protected speech, not the kind of thing that Title VI is intended to punish (or that the First Amendment permits it to). There may be instances in which the slogan is used in a way that renders it harassment, not speech. But it is difficult to understand how the agency could conclude under existing law that these instances are sufficiently numerous to make it anywhere close to likely that this slogan—an extremely popular feature of pro-Palestinian protests on campus—signifies a hostile environment for Jewish students. Consequently, the likely effect of this guidance—and perhaps its intent—is to place pressure on universities to discipline students who engage in what is in fact protected speech. And there is no reason to think that this was the only such meeting in which guidance of this sort was provided or that California universities were the only schools to be given such advice.

Chemerinsky and Gillman’s report is simply one example of how the DOE’s vigorous but often far from transparent efforts to enforce Title VI in the context of campus protests may be imperiling important First Amendment interests. Of course, Chemerinsky and Gillman’s description of the meeting does not in itself establish that the DOE has done anything wrong. It does not establish, for example, what the DOE was attempting to achieve when it provided this guidance.

Nevertheless, two factors make concerns about this kind of jawboning especially hard to evaluate, but also especially salient, in the Title VI context. The first is that, as Justice Sotomayor noted in Vullo, most jawboning happens “behind closed doors.” And this is certainly true of the DOE’s enforcement efforts. We simply do not know what else the DOE has been saying to schools or how it has been advising them about Title VI. This kind of opacity creates space for illegitimate government pressure or at the very least raises concerns about accountability. After all, as was the case in Vullo, the agency providing guidance to the regulated entities possesses a great deal of power over them. The threat of depriving universities that fail to heed the agency’s guidance of federal funds is a very serious one. Similarly, the threat of opening an investigation can have a powerfully incentivizing effect on schools seeking to maintain a good reputation among alumni, donors, and current and future students. Meanwhile, as was also the case in Vullo, the DOE’s guidance to universities is being provided in a fraught political environment—and one in which universities might understandably fear that any suggestion from the DOE that they are failing to protect their students against anti-Semitic discrimination would cause the institutions serious harm. In this context, agencies like the DOE should be careful not to speak in ways that will be interpreted, at least by risk-averse actors, to require institutions to shut down protected speech when in fact this is not and cannot be what Title VI requires.

The second reason that jawboning concerns are hard to evaluate in the context of Title VI—but are important nonetheless to take seriously—is that the institutional incentives of universities, in this fraught political environment, are not likely to make them vigorous defenders of free speech on campus, even if this is something they have publicly pledged to do. The fact that universities, regardless of government pressure, have strong financial and reputational reasons to crack down on student protests even when they constitute protected speech makes the effect of government pressure—like the kind that the DOE may be imposing on universities—harder to discern. Public universities are obviously constrained in the extent to which they can suppress protected student expression, as actors bound by the First Amendment. But when it comes to private universities, no such safeguard exists.

It is in this context that government pressure may also be especially effective, as Justice Sotomayor noted in Vullo, because intermediaries like universities “will often be less invested in the speaker’s message and thus less likely to risk the regulator’s ire.” Last term’s other jawboning decision, Murthy v. Missouri, made clear how difficult it will be for plaintiffs to establish First Amendment violations when a private intermediary might have “independent incentives” to suppress speech and is exercising “their own judgment.” In such cases, as in the case of social media platforms in Murthy, courts may find it difficult to disentangle the First Amendment rights of the intermediary to decide what kinds of speech to host from the effects of illegitimate government pressure. At the very least, as Judge Richard Posner noted in Backpage.com v. Dart, an intermediary’s statements that they were not acting as a result of government pressure should not always be taken at face value, because targets of government pressure “will be reluctant to acknowledge that [they are] submitting to threats” and will instead insist that they are acting for some independent reason like “having discovered that [the activity] offends [their] moral principles.”

These two factors may make it quite difficult to conclude in any particular case that the DOE has violated the First Amendment bar on unconstitutional jawboning or that its guidance has definitely led such-and-such university to crack down on protected student speech. But they also raise the chances that the DOE’s enforcement efforts are not only leading universities to suppress or sanction political speech that does violate Title VI but also leading universities to suppress or sanction political speech that does not and is instead protected by the First Amendment.

In this context, it is incumbent on the DOE to do more to embed First Amendment considerations into its operating procedures. It is all very well and good to acknowledge that the First Amendment constrains its interpretation of Title VI. But making that constraint meaningful in the context of a regulatory regime that depends so much on private communication with the regulated parties, and which involves an agency with so much power to shame and to sanction, is another matter entirely. Rather than merely noting the existence of the First Amendment constraints, the DOE could and should change how it communicates to and about universities.

For example, the FBI has released guidelines about how it will communicate with social media platforms in light of Murthy to ensure that “[a]ny actions that companies may take in response to receiving information from the FBI in these contexts are strictly voluntary and are based on their independent judgment, initiative, and decision-making process.” The DOE should do the same. In addition, it could provide clearer explanation of the reasoning that led it to offer the guidance it has. Or it could adopt other ex ante measures that are designed to ensure that whatever guidance it provides to private universities, neither their purpose nor their effect is the suppression of protected expression. More constraint and transparency are necessary to ensure that through its informal communications with universities about Title VI, the government does not end up doing an end run around First Amendment protections. The DOE’s mission to prevent discrimination in education is an important one, but it must be pursued within constitutional limits. The DOE should not undermine this important goal with enforcement efforts that threaten protected political expression.