How Congress Could Protect Free Speech on Campus

Last year at Harvard, three Israeli Jews took a course at the Kennedy School of Government. They say that because of their ethnicity, ancestry, and national origin, their professor subjected them to unequal treatment, trying to suppress their speech in class and allowing teaching assistants and classmates to create a hostile climate for Jews.

Afterward, they filed a complaint with Harvard alleging a violation of their civil rights. In May, their allegations appeared in a federal civil-rights lawsuit. It cites their claims as evidence that Harvard “ignores and tolerates” anti-Semitism. Their professor, who is also Jewish, rejects that narrative and maintains that he taught the class appropriately.

What do colleges owe their Jewish students? Administrators, faculty, and members of Congress have debated that polarizing question in recent months. Soon, judges and juries may impose some answers. At least 19 lawsuits pending against institutions of higher education allege anti-Semitism that violates Title VI of the Civil Rights Act, which mandates that no person shall, on grounds of race or national origin, “be denied the benefits of, or be subjected to discrimination under” a program that receives federal funds.

[Dara Horn: Why the most educated people in America fall for anti-Semitic lies]

If you had to choose just one of these cases to illustrate their fraught implications, you couldn’t do better than the dispute at Harvard. The students make a strong case that they were subject to discrimination, strong enough that an outside attorney hired by Harvard to investigate agreed. At a minimum, I think they were treated unfairly.

Yet validating their claims would also mean rejecting their professor’s plausible defense of his pedagogical judgments, despite his indisputable expertise, undermining academic freedom.

More worryingly, Title VI doesn’t just guarantee equal treatment. It has been interpreted to mandate that colleges stop and remedy harassing behavior and prevent a persistently hostile climate. The lawsuit defines those concepts so expansively that, should all its arguments prevail, Title VI will conflict with free-speech protections more than it already does––and in doing so, the suit underscores the problem with Title VI, because its interpretation of the statute is plausibly consistent with the law’s vague and malleable text.

The way forward is to reaffirm equal treatment for Jewish students without undermining free speech or academic freedom. But we cannot rely on the justice system to achieve that balance. Congress should intervene, amending Title VI to add robust free-speech protections for all.

The course the lawsuit focuses on, “Organizing: People, Power, Change,” teaches graduate students how to be community organizers. Students form small groups and are asked to decide “Who are my people, what is our challenge, and how can we turn resources we have into the power we need to meet that challenge?” Then each group conceives an organizing campaign and shares it with classmates.

In the spring of 2023, the Israeli students, all mid-career professionals, teamed up in the 116-person class and proposed this plan: “Organizing a growing majority of Israelis, that act in harmony, building on a shared ethos of Israel as a liberal-Jewish-democracy, based on our mixed heritage and identities, being a cultural, economical, and security lighthouse.”

That idea drew complaints from Muslim and Arab students, according to Professor Marshall Ganz, who ordered it altered. Many “find the term ‘Jewish democracy’ deeply offensive because it limits membership in a political community to those who share a specific ethno-religious identity,” Ganz emailed one student, “whereas democracy is based on the equal worth of each person, regardless of race, ethnicity, and religion.”

The three countered that the idea of Jewish democracy is “woven within our identities as Israelis and as Jews.” In a class on learning how to mobilize others around ideas, they argued, “academic freedom is not served by silencing ideas” or “people from unpopular countries.” They refused to alter their campaign.

Later, two teaching assistants did a role-playing presentation for the class to illustrate how to recruit for a cause. They used “Palestinian solidarity” as their example––a choice the Israeli students felt was aimed at them––and, according to the lawsuit, the presentation included “a litany of aggressively anti-Israeli diatribes,” prompting other anti-Israel remarks from one student.

The Israeli students asked to respond with a different perspective. But Ganz rejected the request, the lawsuit states, saying they had “caused enough problems already.” Then the teaching assistants “organized a class photo wherein students posed wearing keffiyehs to demonstrate Palestinian solidarity.” This made the students feel “that they were not welcome” in the photo, according to the lawsuit. The lawsuit also alleges that the Israelis received lower grades than their classmates as punishment––grade inflation is so comically extreme in the Ivy League that they are pressing that claim even after receiving grades of a B+, a B+, and an A-. Ganz has contested the Israeli students’ narrative in an outside investigation, a Nation essay, and an interview with me.

By biography, Ganz, 81, seems an unlikely target of an anti-Semitism lawsuit. His father was a conservative rabbi. His grandparents fled pogroms. His great-uncle was murdered at Auschwitz. He dropped out of Harvard to volunteer with the 1964 Mississippi Summer Project, then became an organizer for United Farm Workers, helping Cesar Chavez unionize farm labor. At 49, he returned to Harvard, finished his degree, then completed a master of public affairs and a Ph.D. in sociology, and became a professor. “My life has been deeply rooted in Jewish values and traditions,” he wrote in his February essay for The Nation, which cast Exodus as the inspiration for his life’s work. “Each generation had to decide: Who are you with?” he wrote. “Pharaoh’s warriors trying to return the people to slavery? Or people trying to break free?”

Ganz was surprised, then angry, when a Title VI complaint, a precursor to the lawsuit, was filed with Harvard. “In my organizing years in the 1960s and ’70s in Mississippi and rural California, I was routinely called out as a Jew Communist outside agitator,” he wrote in The Nation. “But now, I was being investigated at the Kennedy School? As an antisemite?!” He believes that he taught not just lawfully, but with sound pedagogy informed by decades of experience as an organizer and a teacher.

The outside investigator Harvard hired, an attorney named Allyson Kurker, reached a different conclusion. Her June 2023 report sided with the students in significant respects, finding that their free speech was stymied and that they faced a hostile learning environment based on their Jewish ethnicity. When Ganz rejected their campaign, he was motivated by “real concern” for “students and teaching fellows he viewed as members of a group oppressed by Israel,” she wrote, but the Kennedy School’s Statement of Rights and Responsibilities emphasizes that the school should expose students to “even unpopular and controversial” ideas and encourage them to “talk openly” about “highly charged issues.”

Her report acknowledged that the First Amendment, a lodestar for Harvard free-speech policies, does give professors latitude to restrict speech to avoid controversy, if the restriction is limited to “legitimate pedagogical concerns.” So Ganz “could, perhaps, limit students from making hateful or inflammatory statements about Israel or Palestine that are unsupported by authoritative sources,” Kurker wrote. Still, she found “no pedagogical support” for forbidding the trio from calling Israel “a Jewish democracy,” because that is not a merely provocative, unsupportable view––it is a common, if contested, view held by some experts.

The investigation validated Ganz’s decision to allow Palestine-aligned students to express their views. Only the fact that Ganz passively permitted the exercise about Palestinian solidarity to go forward after “seeking to silence the voices of the Students who sought to organize ways to improve Israel as a liberal Jewish democracy” was deemed discriminatory.

In this telling, Ganz could have avoided trouble by letting everyone air their views, even when controversial, rather than hold students to different standards.

Overall, the investigation found that “Ganz treated the Students differently on the basis of their Israeli national origin and Jewish ethnicity,” limiting their ability to participate in the class. But Ganz called the investigation a “kangaroo court.” He told me that neither the investigator nor the lawsuit understands his class and its purpose. “The point of this assignment was for students to learn how to create an organizing space that welcomed others in to build social movements,” he said. “Using contested and inflammatory language conflicted with the purpose of the assignment.”

I asked if he would have objected to an organizing campaign on “Palestinian solidarity.” He answered no, because “creating solidarity as a goal is consistent with the goals of our course.” He added that “a project on advancing a certain state as a ‘Muslim democracy’ (or ‘Christian democracy’)” would have had the same issues as the Israeli students’ project.

Although I don’t think Ganz’s behavior was motivated by anti-Semitism, I do think everyone in the class would’ve been better served by airing and discussing controversial campaign ideas. The attempt to suppress controversial ideas to avoid distraction clearly failed. And if the Israeli students’ framing hurt their ability to organize, surely that taught them something.

That doesn’t mean that whatever ideas a student brings to a class must go unchallenged. I’d defend Ganz had he told the Israeli students, “The phrase ‘Jewish democracy’ will alienate some of your classmates. I need you to understand why, and then to consider: Are you needlessly alienating people? Or is this framing so intrinsic to your cause that you can’t alter it, because to do so would alter the core of your campaign?” But ordering them to change their campaign, having allowed other students to proceed with controversial subjects, makes me suspect that ideological bias distorts Ganz’s sense of what is framing versus substance, what constitutes an unacceptable distraction, and when it is necessary to tell offended students that they will face consequences if they derail a class, rather than preempting ideas.

Of course, that’s just my opinion. Ganz himself raised the important question of who decides when I asked him about the finding that he tried to suppress a contested idea rather than an unsupportable provocation.

“As a scholar in this field,” he wrote, “I have significantly more background and expertise on this matter than a lawyer,” and because the class taught how to organize by way of actually organizing other Harvard students, he reasoned that the three students’ framing “would not only be divisive, but isolate themselves from engagement with others, making it far harder for them to realize the learning the class had to offer.”  

Though I question his approach, I am hesitant to advocate for federal courts or bureaucrats to second-guess the judgments of a longtime professor who has expertise in the field in a dispute where the ostensibly wronged students got good grades and course credit.

Title VI allows students who feel they’ve experienced unequal treatment to appeal to civil-rights bureaucrats and the courts for a remedy. Yet the mere possibility of Title VI complaints creates an incentive for colleges to maintain costly, invariably biased speech-policing bureaucracies. Most monitor and micromanage interactions among faculty, teaching assistants, and students, chilling pedagogy and speech that should be protected.

This particular lawsuit is a major clash that highlights and could exacerbate this broken approach. Harvard has more resources than any other university to defend itself, if it decides that publicly litigating the case is preferable to settling it. The nonprofit that filed the lawsuit, the Brandeis Center, is formidable too: It was founded and is led by Kenneth Marcus, a former Department of Education official who helped ensure that Jews were considered a protected class under Title VI. The lawsuit is likely to benefit from his expertise at spotting fact patterns that help expand protections of Jews.  

[Conor Friedersdorf: The wrong way to fight anti-Semitism on campus]

The Brandeis Center does important work to challenge discriminatory double standards that disadvantage Jewish and Israeli students. “Harvard’s permissive posture towards antisemitism is the opposite of its aggressive enforcement of the same anti-bullying and anti-discrimination policies to protect other minorities,” its lawsuit persuasively argues. If the courts follow the lead of Kurker’s report and resolve double standards by protecting everyone’s expressive rights, the precedent could help protect Jews from discrimination without restricting anyone’s speech.

But its lawsuit doesn’t merely argue for resolving double standards, like the one the students allegedly faced, by emphasizing everyone’s free-speech rights. It argues that some of the protected speech of their professor and of their Palestine-aligned classmates was unlawfully harassing.

And policing more speech on behalf of any group sets a community standard on campus. Colleges must then regulate all speech just as vigorously, or else deploy a double standard that invites lawsuits from members of groups who correctly see that they are treated unequally. Harvard’s past policing of microaggressions informs today’s anti-Semitism complaints. What will Palestinian students be owed in the future?

Rather than risk policing everyone’s speech more intensely, Americans should demand a reaffirmation of that most foundational civil right: the ability of everyone to speak freely. Safeguarding this right requires Congress to act. It should not repeal Title VI—the prohibition on discriminatory double standards should stand. Instead it should amend the statute to clarify that nothing in the law requires policing speech protected by academic freedom or the First Amendment.