Columbia University’s Impossible Position

At Columbia University, administrators and pro-Palestinian students occupying the main quad on campus are in a standoff. President Minouche Shafik has satisfied neither those clamoring for order nor those who want untrammeled protests. Yet a different leader may not have performed any better. The tensions here between free-speech values and antidiscrimination law are unusually complex and difficult, if not impossible, to resolve.

Shafik presides over a lavishly funded center of research, teaching, civic acculturation, and student activism. Such institutions cannot thrive without strong free-speech cultures. Neither can they thrive without limits on when and where protests are permitted—especially when protesters disrupt the institution as a tactic to get what they want. As Shafik told Congress in recent testimony, “Trying to reconcile the free-speech rights of those who want to protest and the rights of Jewish students to be in an environment free of harassment or discrimination has been the central challenge on our campus, and many others, in recent months.”

That is a formidable challenge. The best protest rules are viewpoint-neutral: They constrain equally, rather than coercively disadvantaging one side in a controversy. How strictly should they be enforced? Whatever the answer, it must apply equally to all students. Yet consistent support for viewpoint neutrality is rare inside and outside academia, especially on an issue as fraught as Israel-Palestine, which has divided Columbia’s faculty and students for decades.

All of that context informed a flash point that occurred at Columbia last week: As Palestine-aligned protesters occupied the quad, where many activists covered their face to obscure their identity, Shafik declared, “I have determined that the encampment and related disruptions pose a clear and present danger to the substantial functioning of the University.” After repeatedly warning students to leave and suspending them when they refused, she called the NYPD to remove them from campus, citing vague safety concerns.

[George Packer: The campus-left occupation that broke higher education]

Yet soon after, student activists reappeared on the quad. More activists gathered outside the school’s gates. Observers speculated about whether calling the cops unwittingly escalated the situation. Faculty critics who say Shafik went too far in contacting police held a walkout to show dissent. Some want to censure her for “violation of the fundamental requirements of academic freedom and shared governance, and her unprecedented assault on students’ rights.” Equally vocal critics believe that by not calling police back to campus, she failed to protect Jewish students and let Palestine-aligned activists break sound rules that must apply to everyone in order to be fair. Amid ongoing tumult, Columbia went “hybrid” for the rest of the semester. “Our preference,” Shafik said, “is that students who do not live on campus will not come to campus.”

Columbia’s options are severely constrained because, for better or worse, it cannot merely start applying the viewpoint-neutral ethos that free-speech advocates prefer to these protests. Administrators must weigh the possibility that failing to more tightly regulate these protests could cause the school to be deemed in violation of antidiscrimination law because of their duration, their intensity, and their tenor, as well as pressure from state and federal officials concerned about anti-Semitism.

In a social-media post referencing Columbia, Governor Kathy Hochul put it this way: “The First Amendment protects the right to protest but students also have a right to learn in an environment free from harassment or violence.” As if to underscore the challenge Columbia faces, Hochul misstates Columbia’s legal obligations. As a private university, it is not bound by the First Amendment.

It is subject to Title VI of the Civil Rights Act, which states that no person shall, on grounds of race or national origin, “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under” a program receiving federal funds. To comply, Columbia needn’t be free of harassment. But it must address behavior of sufficient severity or persistence that members of a protected class are denied equal access to education because of their identity. Per current federal guidance, “students who are or are perceived to be Jewish” are covered, and national origin groups are explicitly protected, so Israeli nationals are covered too.

In most campus free-speech disputes that I encounter, the relevant facts are easily grasped in a couple of days, if not a couple of hours. For example, I am confident that the University of Southern California transgressed against viewpoint neutrality when it canceled the valedictorian speech of a Palestine-aligned student, Asna Tabassum. I thought, let her speak. (Protests followed her removal, and USC has now canceled its entire main commencement ceremony.) But at Columbia, I cannot say with confidence whether, in my own free-speech-friendly interpretation of Title VI, Shafik is doing enough or too little to adhere to it.

An example helps clarify the uncertainty here.

If every day protesters on Columbia’s quad were blocking the path of all Jewish students as they tried to walk to class, or shouting ethnic slurs at any student they perceived to be Jewish, Columbia would clearly have a legal obligation to intervene in those protests. Whereas if one time, one protester acting alone blocked the path of one Jewish student, or shouted a slur at a Jewish student, Title VI would not compel Columbia to intervene in ongoing protests. So in between those poles, what is required? The answer is up for debate. Shafik is required to meet a murky legal standard amid protests that she can observe only in part, where a single violent act or viral clip of one charged moment could instantly alter public and official perception about six months of events.

Even insiders charged with analyzing the matter are unsure about Columbia’s legal obligations. In March, a task force convened to study anti-Semitism at the institution released the first in a series of reports, titled “Columbia University’s Rules on Demonstrations.” After studying what antidiscrimination law might require, the report stated, “We urge the University to provide more guidance on the meaning of ‘discriminatory harassment,’ including antisemitic harassment.” It speculated that “at some point, courts and the Department of Education are likely to offer additional guidance.” Until then, it urged that “the University’s legal team should provide more guidance”—but Columbia’s legal team doesn’t have the answer either. Bureaucrats at the Department of Education regularly take extreme liberties in interpreting what antidiscrimination law means, with some conclusions shifting dramatically under different presidents.

In theory, Title VI could be construed in a matter that reinforces the need for viewpoint neutrality: Israel- and Palestine-aligned students would each get no more and no less latitude to protest than Columbia would extend to any other group, regardless of how urgent or pointless, enlightened or abhorrent their position. In practice, counterfactuals cannot guide administrators or regulators, and as the Duke professor Timur Kuran observed on social media, students on both sides of the issue plausibly feel discriminated against by their universities, because “identity politics has inevitably led to arbitrariness and inconsistencies in applying rules.”

In fact, it may be the case that Columbia is both failing to provide its Jewish students with equal access to its educational experience and (as the Knight Foundation has argued) engaging in viewpoint discrimination against Palestine-aligned students.

Those who believe Columbia is overpolicing the Israel-Hamas protests should rationally desire reforms to Title VI, so that more campus speech is deemed acceptable. In reality, most social-justice-oriented faculty and students are either highly selective about whose controversial viewpoints they want protected or loath to recognize the long-standing conflict between tolerance for free speech and antidiscrimination law. Vilifying Shafik without acknowledging the regulatory environment she confronts is much easier.

On the ideological right, meanwhile, is sudden zeal for draconian Department of Education enforcement of antidiscrimination law. “This is what’s known as a Title VI violation,” Ilya Shapiro of the Manhattan Institute posted Monday on social media. “Send in the National Guard and otherwise put Columbia and its morally bankrupt leadership into federal receivership.”

[Adam Serwer: The Republicans who want American carnage]

That is terrible advice, but stakeholders seem to disagree radically about the overall tenor of protests to date. Have they violated the Civil Rights Act as they’ve actually unfolded? The American Association of University Professors doesn’t seem to think so. In a recent statement, it declared that “Shafik’s silencing of peaceful protesters and having them hauled off to jail does a grave disservice to Columbia’s reputation and will be a permanent stain on her presidential legacy.” In contrast, as protesters flooded back onto campus Sunday, Jake Tapper of CNN reported that an Orthodox rabbi at Columbia sent a WhatsApp message to almost 300 Jewish students urging them to leave campus and go home because the institution “cannot guarantee Jewish students’ safety in the face of extreme antisemitism and anarchy.”

Calls for Shafik to resign have come from people on both sides of the conflict. On Wednesday, House Speaker Mike Johnson piled on. But under a new president all of the same challenges and constraints on resolving them would remain. Debate about Columbia would improve if it focused on the thorniest, most contested conflicts between protest rights and antidiscrimination law rather than imagining that a better leader could reconcile the most expansive versions of both projects.