This post is part of a series on weaponizing antidiscrimination law.
** ** **
Earlier this month, the University of California Berkeley made headlines for disclosing the names of 160 affiliates – most prominently the philosopher Judith Butler – to the federal government in “potential connection to reports of alleged antisemitism.” While this decision has appropriately sparked significant backlash, the public conversation around the incident has mostly ignored the fact that more than a dozen universities had already pledged to hand over such data under the Biden administration. These agreements are part of an emerging nationwide system for disciplining campus speech on Palestine, justified using civil rights law and weaponized allegations of antisemitism.
According to a forthcoming report from the Middle East Studies Association (MESA), the Department of Education opened 25 antisemitism investigations of postsecondary educational institutions in the last two months of 2023 – more than all previous years combined. In 2024, that figure would climb to 38 investigations, and 2025 is on pace to be another record-breaking year. This crackdown has relied on Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of “race, color, and national origin” in programs receiving federal funding.
The project of recasting campus protest against Israel as discriminatory harassment against Jewish students draws on two developments that pro-Israel activists have pushed since the early 2000s. First, they successfully pushed the Department of Education’s Office of Civil Rights (OCR) to expand interpretations of Title VI to include some forms of antisemitism. Previously, complaints about antisemitism were treated only through the lens of religious discrimination barred by the First Amendment. Second, pro-Israel forces have successfully normalized treating criticisms of Zionism and Israel as presumptively antisemitic, including through pushing schools to adopt an expansive (and controversial) definition of antisemitism promulgated by the International Holocaust Remembrance Alliance (IHRA). For much of the past twenty years, however, these changes had little effect, and the investigations they promoted into Palestine-related protest yielded few concrete results. All of this changed in the autumn of 2023, with the wave of student protests against Israel’s genocidal war against the Palestinian people in the Gaza Strip.
An ecosystem of pro-Israel and right-wing organizations have been deeply involved in driving the surge in complaints to OCR. Moreover, at least a quarter of the investigations originated from people with no relationship to the schools in question. For example, a single right-wing journalist has instigated at least 15 such inquests. MESA’s analysis of 90 publicly available complaint letters that resulted in investigations shows a pattern whereby protest and criticism against Israel and Zionism are routinely coded as instances of antisemitic harassment. Nor do the complaints need to have any specificity or evidence to merit investigation: one 2023 complaint against Cornell, for instance, consists in its substantive portion of a single paragraph alleging that a certain professor “has spread so much hate and lies. Pushing people towards violence. He is supporting Hammas [sic] and their beliefs. He is literally brain washing students to hate and discriminate towards a certain religions [sic]- Jews.” When it comes to speech critical of Israel, both Democratic and Republican administrations have allowed federal civil rights enforcement to be driven by the equivalent of a YouTube comments section.
This strategy leverages the structure of Title VI enforcement, which regulates colleges and universities as recipients of federal funding. It sets up a “jawboning” dynamic whereby the government induces schools to crack down on Palestine-related speech, which shields the government from being accused of directly violating the First Amendment rights of students, faculty, and staff itself. Schools have disciplined faculty (mostly precarious adjuncts but also notoriously Maura Finkelstein, a tenured professor terminated at Muhlenberg College) and students for Palestine-related speech on dubious grounds, but in many cases it will be difficult to show that such punishments were the direct result of pressure from an OCR investigation.
And even when complaints are deemed unfounded, they can still cause reputational and other harms to perceived enemies of Israel. As the pioneer of this strategy, the conservative lawyer and Zionist activist Kenneth L. Marcus put it, “[n]eedless to say, getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.” This is, in part, because individuals accused of discriminatory conduct in Title VI complaints have no straightforward way under the law to formally respond or clear their name, since the nominal target of such complaints is the institution itself. Bad actors are thus incentivized to file frivolous complaints as a way to inflict reputational damage.
Because OCR investigations are primarily aimed at assessing how schools respond to reports of discrimination rather than determining whether the alleged discrimination actually occurred, they typically end with voluntary “resolution agreements” in which schools pledge to make certain policy changes and provide remedies to complainants. In 2024, over a dozen schools under investigation for anti-semitism signed resolution agreements with the Biden administration. While they vary in some details, their common features outline an emerging federal system for policing campus speech on Palestine, one that proliferates ways of generating grievances (often anonymous) concerning antisemitism that in turn generate pressures (or pretexts) for further crackdowns.
The resolution agreements subject faculty, students, and staff to government-approved mandatory training that often push interpretations of anti-discrimination law that conflate anti-Zionism with antisemitism – and which have already sparked student backlash. They also require schools to develop and distribute “campus climate” surveys designed to elicit anonymous complaints of antisemitism and demonstrate that they took appropriate follow-up steps. Some schools, including the Universities of Michigan and California, pledged to require their campus police forces to report any allegations of discrimination (not simply harassment) they encounter to relevant university authorities, blurring the line between disciplinary processes and criminal investigation.
Another disturbing aspect of these agreements is the pledge to turn over spreadsheets detailing every single internal discrimination complaint in recent years, including names of accusers and accused. (Notably, this policy applies only to “shared ancestry” discrimination, which includes anti-semitism as well as anti-Palestinian, anti-Arab, and anti-Muslim discrimination – it does not include discrimination claims against government-recognized racial categories such as African-Americans and Asian-Americans, which is another indicator of the priorities at work). The agreements also require schools to hand over full case files to the government upon request. The possibility that such information could end up disclosed in Congressional fishing expeditions or simply leaked to the media cannot be discounted.
This type of audit culture—in which the government indirectly regulates campus conduct through repeated demands for information—is at first glance consistent with the expansion of the Department of Education’s enforcement agenda since the Obama administration. Starting in 2011, the DOE began pushing schools to set up mechanisms to receive, record, and adjudicate instances of sexual assault and harassment under Title IX of the Education Amendments Act of 1972, including a regulatory requirement that schools designate a coordinator for Title IX compliance issues. Following this template, many schools have started hiring dedicated Title VI coordinators, while New York has recently adopted legislation that requires such a coordinator. Several sexual harassment investigations under Title IX have, in recent years, also resulted in agreements to hand over lists of accusers and accused, although few of these agreements are as intrusive as those resulting from recent antisemitism investigations.
But this is where the similarities end. Title IX enforcement against sexual harassment and assault sparked a moral panic among the right about false or exaggerated accusations (to say nothing of legitimate concerns about academic freedom). In response, the government eventually enacted regulations specifying numerous procedural protections for those accused under Title IX. Given the strong anti-Palestinian bipartisan consensus in favor of draconian approaches to antisemitism, similar safeguards are unlikely to be forthcoming in the Title VI context.
While the Biden administration wielded Title VI as a cudgel to crush student-led protests in support of Palestine, Trump has converted it into a battering ram in his attempt to remake American higher education according to his white supremacist vision—taking advantage of the hostility to Palestinian liberation that unites many liberals with much of the right. Thus, schools that signed away the privacy of their students, faculty, and staff to Biden have nevertheless been forced to renegotiate with Trump. Brown University, for instance, agreed to turn over names of accusers and accused in a 2024 resolution agreement with the Biden administration. A year later, it signed a second deal with the Trump administration that reaffirmed this commitment but went even further, pledging to scour anonymous course evaluations for allegations of antisemitism to investigate. Harvard and UCLA, too, currently in Trump’s crosshairs and beating their chests about academic freedom, are among those that had already sold out their students who stood up against war and genocide. Whether universities are able to hold the line against the more egregious parts of the Trump agenda, the groundwork has already been laid for more draconian surveillance and punishment of campus speech.
