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Brooklyn Law Review

Abstract

The long-standing debate about free speech on college campuses was reignited by the attack on Israel by Hamas on October 7, 2023. Since then, anti-Israel advocacy at universities has drastically escalated. During demonstrations, protests, and rallies, students shout vile antisemitic slogans, call for the death of Jews and the destruction of Israel, promote violence against Jews, and harass and threaten fellow students because they are Jewish. Some university administrators have been publicly accused of floundering in their responses to intensifying antisemitic campus environments and failing to protect Jewish students from harassment. In defense of their inaction, a frequent retort is that student advocacy is protected by the right to free speech under the First Amendment. University administrators are obligated to effectively balance the protection of free speech with the prevention of student conduct that creates a hostile learning environment for other students. As scholars debate how university administrators can effectuate both important interests, some argue that one must outweigh the other and choose between two deeply valued principles: freedom of expression and freedom from discrimination and harassment. However, neither principle needs to be abandoned. Rather than simply prioritizing free speech as a constitutional right that trumps statutory civil rights law or arguing the untenable position that free speech rights must be curtailed when the harm of discrimination is at stake, university officials possess the inherent legal power and obligation to uphold both fundamental values. A line can be drawn between protected campus speech and unprotected speech and actions that substantially disrupt and interfere with the order and function of universities. This Article proposes that administrators uphold values of respect, integrity, and community by communicating and enforcing content-neutral campus advocacy policies, condemning hatred, and promoting the inclusion of all voices as fundamental to the free expression of ideas and learning. This will enable universities to adequately protect freedom of expression about the Israeli-Palestinian conflict while also providing harassment-free university environments for Jewish students. To demonstrate the necessity, legality, and morality of this strategy, this Article first describes the amplification of the Israeli-Palestinian conflict discourse and the intensification of antisemitism on college campuses since October 7, 2023. Next, it examines the legal requirement to protect Jewish students from hostile environments under Title VI of the Civil Rights Act and criticism of some university administrators for their failure to fulfill this obligation. It then analyzes First Amendment doctrine, demonstrating how the Supreme Court has empowered universities to regulate student advocacy and maintain academic environments conducive to fulfilling their missions while also upholding student free speech protections. Finally, this Article posits that during this time of heightened anti-Israel advocacy and increased antisemitism, American institutions of higher learning have a legal obligation and a moral duty to set parameters for campus advocacy and to create rules of engagement that facilitate constructive dialogue about the conflict in the Middle East.

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