Over the past year, on university campuses across the United States, thousands of students participated in protests relating to Hamas’s attack on Israel and Israel’s bombardment of Gaza. In response to the protests and related student speech, some universities suspended student groups, imposed new restrictions on students’ expressive and associational rights, canceled film screenings, revoked speaking invitations, limited access to campus, and called in the police.

Universities’ actions were shaped by many factors, including concern about student welfare and university programs but also intense pressure from advocacy groups, powerful alumni, and legislators. (The Knight Institute explored some of this in “War & Speech,” a podcast about the free-speech fallout of the war in Israel and Gaza.) A sometimes-underappreciated factor in universities’ decision-making was Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in federally funded programs. Protests and counterprotests on campus generated allegations of antisemitism, racism, and Islamophobia. Universities sometimes took the speech-suppressive actions they did because Title VI required them to, or because they believed it might.

It’s not hard to understand why universities might have been worried about Title VI liability for failing to respond appropriately to allegedly discriminatory student speech. Since October 2023, the Department of Education has opened some 75 Title VI investigations into universities’ responses to allegations of shared-ancestry or national-origin discrimination on their campuses. The agency has told universities that students’ use of certain pro-Palestinian slogans can create a “hostile environment” to which universities are required by law to respond. More than a dozen civil suits have been filed alleging that universities violated Title VI by failing to respond sufficiently aggressively to allegations that student speech was antisemitic, racist, or Islamophobic. All of this has created a climate in which institutions of higher education are highly incentivized to seem responsive to episodes involving student speech alleged to be discriminatory.

Title VI was originally enacted to address segregation in schools, and the statute continues to play an important role today in protecting students from discrimination. There may well be merit to some of the Title VI complaints that have been filed over the past year. But it is also true that fear of liability under Title VI has led some universities to suppress—or given them a convenient pretext for suppressing—a broad swath of political speech that the First Amendment plainly protects. This situation has arisen, or been made worse, because there is a great deal of confusion about what Title VI actually requires. There’s no question that certain kinds of speech can constitute discriminatory harassment under Title VI, and no question that Title VI requires universities to respond when they are made aware that discriminatory harassment is taking place. But there is no consensus about what kinds of student speech can trigger universities’ obligations under Title VI, or about what those obligations are. And there has been surprisingly little reflection about how what might be called maximalist theories of Title VI can be reconciled with the First Amendment.

Over the summer, the Knight Institute convened a group of legal scholars to consider the relevance of Title VI to the campus protests, the relationship of Title VI to the First Amendment, and what lessons might be drawn from our collective experience with other civil rights statutes. Participants in the convening included Professors Michael Dorf (Cornell Law School), Evelyn Douek (Stanford Law School), Olati Johnson (Columbia Law School), Jeremy Kessler (Columbia Law School), Genevieve Lakier (University of Chicago Law School), Marty Lederman (Georgetown Law School), David Pozen (Columbia Law School), Amy Kapczynski (Yale Law School), Shirin Sinnar (Stanford Law School), and Jeannie Suk Gersen (Harvard Law School). Over the next weeks, the Institute will publish short posts by some of these scholars. Our hope is that their posts, as a collection, will inform public debate about the universities’ responses to past student protests and provide some guideposts to university administrators as they consider how to respond to future ones.

You can read the first post—from Evelyn Douek and Genevieve Lakier—here.