Introduction
There can be no question that a crisis erupted for many colleges and universities after October 7, 2023, as large, sustained campus protests took hold on a scale not seen since the Vietnam War demonstrations more than a half-century earlier.
These protests also sparked real questions about the role of Title VI of the Civil Rights Act of 1964 as a mechanism for governmental discipline of higher education institutions and institutional boundary setting going forward.
This Piece seeks to reset the discourse around Title VI in light of the statute’s history, doctrine, and role in higher education. In doing so, the discussion focuses especially on the recurring potential for student conflicts involving First Amendment–protected speech related to race and national origin, including shared ancestry, as schools carry out their dual commitments to robust debate and a thriving, pluralist student body.
Title VI came into the higher education spotlight, after a long period of relative inattention, as a legal stick to press schools on alleged violations of students’ right to an education free from discrimination as a result of post–October 7, 2023, encampments, library sit-ins, traditional protests, and other campus clashes.
The claim was, in essence, that the statute, which prohibits discrimination based on race, color, and national origin in federally funded programs, required more from higher education institutions in response to allegations of antisemitism and anti-Muslim bias on campus.
Reaching these types of harms through Title VI was not a legal innovation as a general matter because Title VI has long been interpreted to cover discrimination based on “shared ancestry,”
including against students who are “Jewish, Israeli, Muslim, Arab, Sikh, South Asian, Hindu, Palestinian, or any other faith or ancestry.”
But deploying Title VI’s hostile environment doctrine against colleges’ and universities’ responses to large-scale protests rather than individualized discrimination claims was new.
This use of Title VI magnified two aspects of a long-simmering tension between nondiscrimination and free expression in the ideological rough-and-tumble of a campus learning environment. First, higher education institutions depend on vigorous contestation of ideas to fulfill their academic mission. First Amendment doctrine reinforces this point through special protections for speech at public colleges and universities, and many private institutions have committed themselves to comparable protections for speech on their campuses.
Second, a robust learning environment also depends on students (as well as faculty and staff) being able to navigate profound differences in backgrounds, beliefs, and other important aspects of identity while participating in classes and campus life. Taken together, especially in high-intensity debates on sensitive issues, the result is that one student’s protected expression may be experienced by another student as offensive and even threatening in ways that interfere with that student’s participation.
These types of clashes, which open up learning for some while shutting it down for others, are “baked in” to any higher education setting that supports the exchange of ideas among a pluralist student body. And the claim that Title VI is a fix for these clashes is not only ahistorical and lawless as applied by the Trump Administration but also unworkable doctrinally and undermining of higher education.
Even apart from free speech concerns, many harms students experience during or after these clashes—including declines in participation, grades, and well-being—do not necessarily meet the very high bar set by Title VI hostile environment doctrine, which establishes that discrimination must be severe, pervasive, and objectively offensive in a way that deprives the student of access to the school’s educational opportunities.
Even further, institutions will be held liable under Title VI only if they have been deliberately indifferent to that discrimination.
The upshot is while Title VI remains relevant to managing campus challenges of the sort presented by post–October 7, 2023, protests or other concerns about antisemitism or anti-Muslim hostility on campuses, it will not ensure an optimal, or even adequate, learning environment for all students. Leading with Title VI in these efforts is thus to err as a matter of law and educational strategy.
In contrast, an approach to Title VI that focuses on citizenship in the campus community—accounting for the respective roles and capacities of government and schools to support free inquiry and a robust nondiscriminatory learning environment for all students—can yield strategies and regulations that work with, rather than against, the tensions inherent in these specialized settings.
To put recent use and discussions of Title VI in perspective, it is important to remember that, prior to October 7, 2023, colleges and universities devoted relatively few resources and little attention to the statute’s implementation in response to hostile speech related to students’ race, color, or national origin.
During this time and for many years prior, schools had dedicated substantial resources to implementing their obligations under federal disability law and Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded educational programs and activities.
Scholars, too, have devoted substantial attention to enforcement of Title IX on college campuses.
Still, we disregard Title VI’s pre–October 7, 2023, history at our peril. Although Title VI has often been labeled a “sleeping giant,” it might well be the most powerful civil rights statute we have.
With that in mind, Part I provides a brief but essential orientation to Title VI, including the introduction of hostile environment doctrine in the 1990s and a review of the longstanding statutory and regulatory enforcement procedures. It is these procedures that Trump Administration officials have so plainly disregarded while converting Title VI from protective to punitive, right before our eyes.
Part II turns to the challenge of trying to manage campus protests through the antidiscrimination mechanism of Title VI, mapping the longstanding clashes between First Amendment doctrine and the legal obligation to prohibit harassment that involves speech. Part II provides a path forward that protects political and academic speech on campuses while also protecting students from severe and pervasive harassment. This Piece argues, however, that because harmful speech will likely persist consistent with the First Amendment, Title VI’s compliance regime is ill-suited for producing flourishing and sustainable campus environments.
Part III relocates Title VI compliance efforts within a community–citizenship framework and a broader set of regulatory and self-governance recommendations. Through this lens, the statute returns to its appropriate and necessary role of setting outer disciplinary limits and stimulating a multifaceted approach to address the harms of hostile speech
while guarding against executive branch takeover of higher education institutions.
* * *
In this effort, this Piece takes as foundational that many students experienced the post–October 7, 2023, protests or their institutions’ reactions to the protests as profoundly harmful and disruptive, both personally and educationally.
This includes Jewish students who expressed fear and concern for their personal safety and well-being related to antisemitism, including antisemitic harassment on and near their campuses, and Arab, Muslim, and Palestinian students who likewise reported personal-safety fears and concerns related to anti-Muslim bias and harassment on and near their campuses.
Significant numbers of other students also reported being negatively affected, including those who were not involved in protests but felt “caught in the crossfire.”
This was not mere upset during a difficult period on campus. Many students reported that their schools were not adequately protecting their safety, including thousands of students who responded to two nonpartisan surveys on hundreds of campuses in late 2023 and early 2024.
Of these, over half of Jewish and Muslim students reported feeling “in personal danger” in relation to their views on the Israel–Gaza conflict, as did roughly sixteen percent of other students.
This did not necessarily mean students were at risk of imminent physical harm but did encompass fears for physical safety as well as concerns about “academic discrimination, current or future economic livelihood, and social isolation.”
A report on the data stressed that the impact of these fears “in an academic environment devoted to scholarship and learning[] should not be underestimated.”
Further analyses showed that students’ senses of fear and intimidation on many campuses
arose from a range of experiences and observations, including direct threats; verbal abuse; subjection to physical violence;
vandalism of campus institutions;
interpretation of popular protest chants as calls for violence or discrimination against Jews or their loved ones in the United States or Israel;
and publication of protesters’ personal views and information (i.e., doxxing),
resulting in physical threats, including arrests and threats of student visa revocation and deportation,
as well as the loss of professional opportunities.
Other students have described ongoing negative effects from the deterioration of campus climates after October 7, 2023, including in their classrooms and—particularly for students of color—in relation to immigration enforcement actions by the federal government.
Students were not alone in their experiences of discontent and outrage at their institutions’ responses. Many employees, including faculty and staff, made public statements, filed complaints, and otherwise expressed their views about schools reacting insufficiently or excessively to post–October 7, 2023, protests and other incidents on campus.
Numerous school leaders endeavored to address these challenges by announcing task forces, disciplinary responses, new rules and resources, and various other actions, some in response to recommendations from task forces and outside organizations, and others in response to resolution agreements with the Department of Education’s Office for Civil Rights (OCR) or in settlements of private litigation.
This complex and still-evolving set of circumstances provides the context for the discussion below.
I. Distorting Title VI
Title VI of the 1964 Civil Rights Act
has become the stage for battles over free expression and academic freedom on college campuses, channeling complex debates over viewpoint diversity, the extent to which campuses are fora for protests, and how to best protect students from offensive speech. Antidiscrimination law might be well-suited to remedy the extremes—those clear instances such as epithets, threats, or assaults in which harassment by peers limits the ability of students to participate on campus and schools fail to appropriately address these violations. But it is not designed for, nor has it been effective as, a tool for negotiating the difficulties of balancing free expression with identity-based harm. Mediating these difficulties will be necessary to deal effectively with the protests and their aftermath that reoccur on college campuses.
This Part considers the recent punitive turn in the executive branch’s use of Title VI, arguing that it is inconsistent with the language, design, and past implementation of the statute. At the same time this Part recovers the inclusionary goals that underlie Title VI, which this Piece argues could be harnessed to address campus conflicts while attending to and honoring both free expression and student well-being as laid out in Parts II and III.
A. Title VI and Harassment on Campuses
In the spring of 2025, the Trump Administration moved to terminate federal funding from several universities, claiming that these universities failed to sufficiently protect students from antisemitism on campus.
As this Part shows, the Administration’s funding terminations were unprecedented in their reasoning and scale and far exceeded what the statute’s language and design allow.
The invocation of the statute in connection with antisemitism and the Israel–Gaza protests built on previous guidance from OCR interpreting Title VI’s prohibitions on race and national origin discrimination to apply to Jewish and Muslim students on the theory of “shared ancestry.”
Title VI shared ancestry complaints to OCR spiked after October 7, 2023, and the ensuing protests, including complaints by Jewish, Israeli, Muslim, Arab, and Palestinian students.
The discrimination complaints arising out of the protests implicate Title VI’s prohibition on actions that create a hostile educational environment for students,
a doctrine that predates the current battles over speech and protest related to the Israel–Gaza conflict.
The broader context of Title VI harassment law is necessary for understanding why the Trump Administration’s moves to terminate federal funding are so at odds with the language, purpose, and past implementation of the statute. And it also serves as a reminder of the affirmative goal of Title VI in educational programs, which this Piece argues still has value: working toward environments in which students can flourish and fully participate regardless of their race, color, or national origin, including their shared ancestry.
That Title VI is now at the center of battles over free expression does have some relationship to prior battles over the reach and power of the statute to address racist incidents on campus.
But its current use by the Trump Administration escalates these contestations in ways that threaten the statute’s fundamental aspiration of inclusion as well as the values of free expression and autonomy from government interference that universities require to thrive. Recent commentaries on Title VI often focus on the Trump Administration’s funding threats, the campus protests, and antisemitism,
but returning to the statute’s role in addressing race discrimination widens the ambit away from more recent and polarizing campus protests and allows us to take a more calibrated view of the statute’s limits and potential value in addressing the free expression and antidiscrimination challenges on college campuses.
The hostile educational environment standard emanates from the statute’s core purpose in providing educational access to those excluded from schools and universities, primarily Black students. When it was enacted in 1964, Title VI represented an extraordinary mobilization of federal power to put pressure on school districts that refused to desegregate after Brown v. Board of Education.
It put in place the framework of conditioning federal funds on school districts’ compliance with administrative and judicial desegregation orders. And Title VI did so with considerable success in its early years: Desegregation was stalled in much of the Deep South until the statute’s passage and implementation.
Title VI would also play a significant role in the desegregation of higher education institutions, though this came only after civil rights groups brought litigation against the predecessor agency to the Department of Education—the Department of Health, Education, and Welfare (HEW)—for its failure to implement the statute’s desegregation mandate.
Though initially slow, commentators credit Title VI enforcement with the development of desegregation plans in higher education institutions throughout the South.
The hostile educational environment standard—the notion that students or faculty could create conditions on campus so offensive as to deny students educational opportunity
—emerged as a second-generation racial inclusion issue.
The doctrine took shape as a response to the harassment of students of color on newly integrated college and university campuses, often amid objections that Black students in particular deserved to be there.
The standard for peer harassment in schools and universities derives from the harassment standard developed by the Supreme Court in the Title VII sexual harassment case Meritor Savings Bank v. Vinson.
Drawing on Meritor, the Supreme Court mapped out the standard for student-on-student harassment in the Title IX case Davis v. Monroe County Board of Education: The harassing behavior must be “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
Davis explained that determining when harassment rises to a level of a statutory violation requires considering “‘a constellation of surrounding circumstances, expectations, and relationships,’ including, but not limited to, the ages of the harasser and the victim and the number of individuals involved.”
In private lawsuits for money damages, the standard for a school’s liability is that the school (which includes colleges and universities that receive federal funding) must be “deliberately indifferent” to discriminatory conditions on campus of which the school has actual or constructive notice.
It also must have “substantial control over both the harasser and the context in which the known harassment occurs.”
OCR has rendered this standard into administrative guidance for federal grantees subject to Title VI, stating that the conduct must be “severe or pervasive” (using the disjunctive)
enough to deny or limit a student’s ability to participate in or benefit from the educational program.
OCR guidance states that a school may be found to have violated Title VI when it fails to take prompt and effective steps reasonably calculated to end harassment, eliminate the hostile environment, and prevent its recurrence.
In both administrative and judicial contexts, this high standard for finding harassment means that harassment law does not address the full range of hostile acts, statements, attitudes, microaggressions, and “low-grade” discrimination that often makes students deeply uncomfortable or upset in college settings
but that fall below the level of severe and pervasive.
Rather, the hostile educational environment standard reaches only behavior and speech so offensive, severe, and pervasive that it produces objective interference with the ability of the victim to participate in educational activities, as well as subjective harm.
Prior to the current campus crises, administrative complaints and lawsuits often involved extremely abusive or exclusionary behavior, typically directed at specific individuals, including physical assaults, threats, violent imagery, racialized gestures, racist and antisemitic symbols, threats, epithets, and slurs.
In response to Title VI harassment complaints, OCR has negotiated voluntary resolution agreements with schools in which the schools agree to improve campus climates and adjust their compliance regimes.
These include requiring antidiscrimination and anti-harassment training for administrators and staff; the expansion of reporting and tracking of harassment on campus; and fair and nondiscriminatory discipline.
As discussed further in Part II, while OCR has not resolved the hard question of how to balance free expression and harassment, it has focused compliance not on funding cut-offs, but on strengthening the on-campus Title VI enforcement infrastructure.
It is important to note that until the spike of shared ancestry claims in 2023 and 2024, most institutions did not have a robust Title VI compliance regime.
Many lacked race-related anti-harassment training or Title VI coordinators or had minimal programs relative to their compliance efforts under Title IX of the Education Amendments of 1972 and federal disability law.
This is despite the fact that research and surveys have consistently documented adverse campus climates and racism on campus experienced by students of color—particularly by Black students at predominantly white institutions. What students report as pervasive racism and hostility on college campuses has been a major contributor to poor mental health, disparities in educational outcomes, and increased drop-out rates for Black students and students from other minority, traditionally disfavored, or disadvantaged backgrounds.
In addition to being disproportionately subjected to violence and profiling by campus security and police—along with hate crimes in the communities that surround campus—students of color report a range of incidents of racism on campus, including racially motivated violent assaults committed by other students,
racist epithets and slurs, videos celebrating racial violence, stereotypical or mocking depictions of people of color, burnings of books written by authors of color, and white supremacist speeches.
Researchers who work on these issues do not look regularly to Title VI’s harassment framework as the fix for these pervasive concerns but instead recommend changes to the structural and cultural contexts that produce racism and other forms of exclusion.
This point bears emphasis to ensure that any approach by universities or agencies to the new wave of “shared ancestry” complaints also attends to long-standing problems facing students of color on campuses. And it suggests caution in placing too much faith in Title VI enforcement as some advocates and government actors are pressing its use as a way to address antisemitism.
B. The Illegality of Termination
The Trump Administration’s actions beginning in the spring of 2025 represent a dramatic shift in the use of Title VI. The opening move came in March 2025, when the General Services Administration, the Department of Health and Human Services, and the Department of Education sent a letter to Columbia University’s then-president stating that the University had “failed to protect American students and faculty from antisemitic violence and harassment” and thus $400 million of federal funds to the University would be paused or terminated if the University did not meet a number of demands.
The Administration’s demands included changes to student disciplinary policies and procedures stemming from campus protests; placement of the Department of Middle Eastern, South Asian, and African Studies “under academic receivership”; and reform of admissions to various schools within the University.
The University did not legally challenge the letter but entered into negotiations with the Administration, which were settled on July 23, 2025.
The Administration took even more dramatic action to terminate billions of dollars of federal funds against Harvard, a matter that is now being litigated.
The dramatic invocation of the funding termination mechanism is at odds with the language of Title VI, which requires adherence to specific procedural steps and to constitutional due process before allowing a funding termination.
Specifically, agencies need to first attempt to negotiate a compliance agreement, and termination of funding for noncompliance can occur only if agreement cannot be reached voluntarily, proper notifications are made,
a hearing is held (if the funding recipient so chooses), and an “express finding” of noncompliance is made “on the record.”
Even then, any such administratively adjudicated finding of noncompliance can only become final thirty days after the agency has filed a “full written report” with the relevant congressional committees delineating the basis for termination.
These statutory procedural protections prior to a funding termination reflect Congress’s caution in allowing the executive branch termination power. In the initial drafting of Title VI, the termination authority was highly contested.
Proponents argued that the threat of termination was important to get recipients of federal funds to comply with the Act’s antidiscrimination requirements.
In debating the termination power, some members of Congress feared that the power of funding termination was too mighty and that the executive branch might abuse that power in the absence of procedural protections or that the executive branch might use Title VI punitively.
As a compromise, Congress put in the constraining language of 42 U.S.C. § 2000d-1 requiring negotiation, a hearing, a finding on the record, and congressional review.
The enacting Congress also inserted a “pinpoint” requirement that limited the power of termination to the specific program that engaged in discrimination.
Congress retained this “pinpoint” requirement for funding termination even after it amended the statute in response to the Grove City College v. Bell case in which the Supreme Court limited the substantive reach of Title IX to the program or activity receiving federal funds.
In 1988, Congress amended the statute to provide that when any part of a school received federal funds, the entire school was covered by Title IX or Title VI
but specifically retained the pinpoint provision for funding termination.
In addition, by congressional design and administrative practice, the implementation of Title VI (and Title IX) emphasizes voluntary compliance—the development of negotiated compliance agreements between schools and the agency.
While civil rights and racial justice groups have long criticized the federal government for not terminating funds to noncompliant institutions, the emphasis on securing agreements also serves to ensure that students are not punished by the defunding of schools and universities. As Judge David Tatel (the former chair of OCR) recently explained, the point of the termination tool was to rarely have to use it.
Negotiated compliance leveraged federal funds to promote student inclusion, not to threaten the existence of public or private institutions.
There is scarce evidence that federal funds were historically terminated to institutions. Political scientist Stephen Halpern, who has written extensively about Title VI, has documented funding terminations to K–12 school districts that refused to admit Black students in the late 1960s.
In a declaration, Judge Tatel described a series of important negotiations and eventual DOJ-adjudicated consent decrees with the most recalcitrant schools and universities that refused to desegregate, but he could remember no funding termination.
There is no evidence that, until recently, funds were ever terminated to an institution because of a hostile educational environment, much less one that required balancing the rights and norms of free expression that Part II describes.
Civil rights groups have criticized agencies’ emphasis on voluntary compliance in Title VI as ineffectual.
But other commentators have criticized Title VI for allowing the federal government to exercise extensive power under the shadow of formal legal constraint since the prospect of federal investigation and the specter of federal funding loss is enough to induce compliance.
One way to make sense of these competing conceptions is that the statute in its design and its implementation allows the federal government considerable formal and informal power through the leveraging of federal funding, but it also requires the agency to proceed with care after understanding the institutional objectives and honoring the autonomy of the college or university. Judge Tatel described this balance during his time leading OCR: “Because college and university leaders knew their systems better than the federal government and to respect the independence and autonomy of . . . higher education systems,” OCR allowed higher education systems the chance to first develop their own compliance plans.
Applied to the current contestations over antisemitism on university campuses, a sincere and thorough response would leverage Title VI to require the federal government, with the participation of schools and universities, to cocreate solutions and programs that would balance free expression with inclusion goals and ensure compliance with the statute consistent with the university’s academic mission. Part III provides further discussion of what such a process might entail and produce.
C. Title VI as Punishment
Rather than honoring the inclusionary aspirations of Title VI while taking account of institutional values such as academic autonomy and free expression, the executive branch is transforming Title VI into an instrument of punishment. Invoking the draconian remedy of termination vitiates the institutional conditions and space necessary to sort through the enduring challenges of balancing free expression with antidiscrimination.
Combined with the arrest, detention, and threatened deportation of protesting students,
this punitive approach to Title VI instead creates a climate of fear on campuses for students, faculty, and staff. It also creates incentives for the development of on-campus disciplinary regimes that emphasize punishment for protest and dissent through suspension and expulsion. These punitive regimes place less emphasis on nonpunitive redress, prevention, or strategies to enable students to de-escalate campus conflicts or increase their ability to engage across racial, religious, political, or ideological differences.
The use of Title VI in this way—without following the statutory procedures—lends itself to the view that ultimately the current Administration is less interested in producing inclusive environments free from discrimination than in punishing universities for having the very qualities one associates with higher education: diversity of viewpoint, a culture that fosters dissent and critical inquiry, and persistent challenging of conventional wisdom.
That the agreements spurred by concerns about antisemitism go beyond addressing antisemitism to deal with university governance,
curriculum,
admissions,
and “all-female sports, locker rooms, and showering facilities”
suggests that the executive branch is using Title VI to broadly control universities.
As Title VI becomes an instrument for punishing and controlling universities, it might be tempting to abandon the statute entirely. This may be particularly appealing given the doctrinal challenges related to balancing free expression and academic freedom with the antidiscrimination goals that are discussed in Part II, a tension that neither courts nor administrative agencies have ever fully resolved. This Piece takes the position, however, that the inclusionary aspirations of the statute described in section I.A are well worth preserving and fulfilling in order to support student thriving on campus.
II. Reconciling Antidiscrimination and Free Expression
Beyond the violation of administrative procedures, there are other difficulties in using Title VI’s prohibitions on harassment to manage campus controversies. Current campus debates over free speech and antisemitism reflect long-standing contestations over how to balance free speech and antidiscrimination on college campuses.
While the protests following October 7, 2023, were distinct in their scale and focus, they stemmed from recurring dynamics that inhere on college campuses and universities, which are thus unlikely to be fully solved. Channeling these longstanding tensions on university campuses through Title VI’s liability standard simultaneously threatens free expression values on campus while failing to produce the full measures necessary to promote student thriving, participation, and interaction on college campuses.
This Part examines the long-standing and unresolved doctrinal tensions between free expression and antidiscrimination. It argues that these tensions persist doctrinally because the conflicts are both inevitable in the university context and connected to hallmarks that one celebrates in universities. This is not to celebrate disruptive or harmful speech. Part III argues that universities should employ strategies outside the disciplinary process that discourage offensive speech and that encourage student flourishing and intellectual inquiry. This Part, however, emphasizes that these conflicts over identity and free expression arise because of the confrontation of ideas, politics, the passion of young people, the diversity among students, and the relative freedom from family and community constraints that produces exploration of new ideas, dissent, protest, and sometimes even recklessness.
As this Part shows, both normatively and doctrinally, Title VI is a limited tool for managing the resulting friction.
A. Round One: Campus Codes and Free Speech
Harassment law has long been vulnerable to the argument that it infringes on First Amendment rights. While recent decisions of the Supreme Court emphasize the need for conscience exceptions to generally applicable antidiscrimination laws,
the Supreme Court has not resolved the precise question of whether antidiscrimination law’s hostile environment standard infringes on the First Amendment. The closest the Court came to ruling on this question came in R.A.V. v. City of St. Paul.
There, the Court held that the First Amendment’s prohibition on viewpoint discrimination forbade a city from criminalizing racially motivated cross-burning, and dictum in Justice Antonin Scalia’s opinion left an opening for workplace harassment law on the theory that it was “directed not against speech but against conduct.”
Resolving the line between free expression and harassment became crucial in the 1980s, a period in which schools and universities took action to address nooses, cross-burnings, graffiti, and racial threats by enacting disciplinary codes of conduct.
Many of the disciplinary codes went further than addressing epithets and threats or individualized harassment and were ultimately struck down under the First Amendment.
One of the most famous cases—Doe v. University of Michigan—arose after a series of racist incidents at the University of Michigan over a three-year period in the late 1980s.
As described by the district court that eventually reviewed the speech code, these incidents included the distribution of a flier using racial epithets against Black students, a student DJ making racist jokes on an on-campus radio show, and someone displaying a KKK outfit in a dormitory window.
The University subsequently adopted a campus speech code that prohibited on-campus behavior that “[c]reates an intimidating, hostile, or demeaning environment for educational pursuits” and punished “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin” or other listed identities.
An interpretive guide listed prohibited activities such as commenting in a derogatory way about a person’s physical appearance or sexual orientation, sponsoring a comedian that makes ethnic slurs, or displaying Confederate flags.
The policy was challenged by “John Doe,” a psychology graduate student represented by the ACLU, who claimed that he feared that his classroom “discussion of controversial theories of biologically based racial and sexual difference might be sanctionable under the policy.”
While lauding the inclusionary goals of the policy, the district court struck down the speech code as overbroad and vague.
It was overbroad for subjecting students to hearings and other disciplinary processes for activities such as: expressing the belief that “homosexuality was a disease,” reading a “homophobic limerick” in class, and expressing the view in a small section discussion that minority students in a particular dentistry course were not treated fairly.
The court deemed the policy unconstitutionally vague for a range of reasons, including that it prohibited actions that “‘stigmatize’ or ‘victimize’ an individual.”
Doe was followed by a series of other court decisions striking down campus speech codes. As one scholar summarizes this period: “Every campus . . . hate speech code that has been challenged on First Amendment grounds in a court has been ruled unconstitutional.”
This seeming triumph of free expression values over equity and inclusion led to some critiques by academics. Professor Charles Lawrence, for instance, contended that the emphasis on free expression values often minimized the harms of racist speech and the importance of education in advancing equal citizenship as required by Brown v. Board of Education.
And writing many years later about the 1980s/1990s debates over campus speech codes, Professor Jamal Greene made the additional point that the striking down of campus speech codes fetishized free speech rights at the expense of other values and purposes of universities, such as preparing students for democratic citizenship.
Doe and other court decisions during that period introduced First Amendment constraints that powerfully shaped campus harassment policies, at least until the recent crises ushered in bolder uses of Title VI. In response to these judicial rulings, schools that maintained campus speech codes redrafted them to track the hostile environment standard developed in antidiscrimination law.
Specifically, the new policies constrained only speech meeting the Davis requirement that harassing speech be severe, pervasive, and so offensive that it objectively and subjectively interferes with access to education.
The prevailing, though not unanimous,
legal commentary understood this hostile environment standard, with its severity and objectivity threshold, to be permissible under the First Amendment.
B. Round Two: Title VI and Free Speech
One could view the introduction of the Title VI hostile educational environment standard in response to the debate over campus codes as settling the debates over free expression and antidiscrimination that attend the current campus crises. But it has not. To start, the adoption of the hostile environment standard only resolves the conflict between harassment law and the First Amendment at a high level of generality. What is “severe,” “pervasive,” and objectively offensive will depend on the context, and there will be variation in the application of this standard by university administrators, courts, and administrative actors. While the hostile environment standard has generally been understood to be a high standard in courts,
university administrators may feel external or internal pressure to discipline or limit student speech on a lower standard of offense or severity, or may vary their application based on an administrator’s perception of offensiveness or harm.
Add to this general point the specific epistemic debate over whether certain chants and phrases adopted in the context of campus protest are in fact antisemitic.
Second, First Amendment questions will be easiest when allegations involve slurs, epithets, and insults that arguably receive lower constitutional protection, but how to apply the standard when the claimed harassing speech expresses political viewpoints or occurs in the context of a classroom discussion of a political issue is less clear. This latter category generally receives the highest level of First Amendment protection because it furthers the democratic self-governance goals of the First Amendment.
The lack of a precise articulation in the doctrine and commentary of the free speech limits on the application of Title VI became clear after the protests following October 7, 2023. In issuing administrative guidance following the 2023 to 2024 protests, the Department of Education’s OCR did not clarify the free expression questions. Rather, it simply stated the need to adhere to the First Amendment at a high level of generality. For instance, the Biden Administration’s May 7, 2024, guidance stated that “[n]othing in Title VI or regulations implementing it requires or authorizes a school to restrict any rights otherwise protected by the First Amendment to the U.S. Constitution” and that “OCR enforces the laws within [its] jurisdiction consistent with the First Amendment.”
And yet the guidance did not explain with specificity how the First Amendment would be applied to discriminatory speech or shape enforcement. As discussed below, some of what is included in guidance and enforcement activity is also inconsistent with what some scholars have argued is required by the First Amendment.
The lack of a clear legal framework on how to apply Title VI to post–October 7, 2023, campus protests and disruptions in a manner consistent with the First Amendment has inspired a new round of academic commentary. Most of these recent commentators would agree that racial or ancestry-based epithets directed at specific students can be prohibited and the subject of discipline consistent with the First Amendment. Such epithets are either “conduct” consistent with the Justice Scalia analysis in R.A.V. or the government has a compelling interest in regulating this type of “grossly offensive” speech.
Moreover, quite apart from Title VI harassment law, some of what occurred on campuses in the spring of 2024 could be regulated consistent with time, place, and manner doctrine.
Professor David E. Bernstein and practitioner David L. Bernstein contend, for instance, that actions such as taking over a building, assault and battery, trapping students in classrooms, blocking entrances, or placing graffiti on campus property are either not protected speech (because they are conduct) or can be prohibited under content-neutral rules against physical violence or property harm.
Another question is whether colleges can prohibit grossly offensive speech if it is not directed at a specific student but at a generalized audience or administrators. This is directly relevant to campus protests and encampments since many involved chants that did not target specific students or even students at all. Some commentators argue no: Even in the case of protests involving chants that some groups consider offensive, if these chants are not directed at a specific individual then universities cannot prohibit this speech simply based on its content or the viewpoints it expresses.
Reviewing free expression doctrine and ideal norms on university campuses, Professors Benjamin Eidelson and Deborah Hellman justify this position, arguing that the university context requires students to expect and tolerate some offensive speech.
The exception they would draw is only for “harassment,” which they then define as “conduct” (even if it includes words) that singles out a particular student for “insistent, personal abuse.”
Writer Alex Gourevitch similarly argues that universities should “protect the right to engage in public, disruptive acts—including those that feature open expressions of hostility to political views—even at the cost of some people feeling discomfort or even intense unease.”
While recognizing that a university should “protect students from harm and harassment if it is to sustain the social and intellectual life of the community,” he argues that self-reported feelings of exclusion are not enough.
He would require “some likely and imminent threat of harm, or direct and individualized harassment and intimidation.”
These arguments that a hostile environment requires speech directed at a particular student, however, are inconsistent with the Department of Education’s guidance, which states that the harassment need not be “targeted at a particular person” to violate Title VI—a position that is supported by some case law
and that the Department maintains is fully consistent with the First Amendment.
Beyond settling the issue of targeting, the Biden Administration’s 2024 guidance did not address or resolve many of the toughest pressing questions of political or academic speech and concentrated instead on incidents involving physical threats; assaults; racial, ancestry, or ethnic name-calling or epithets directed toward individuals; and explicit differential treatment and exclusion from university services.
The guidance does acknowledge the complexities of political and academic speech in a section on national origin discrimination, noting that views on a specific country’s policies will not constitute Title VI discrimination: “[A] professor teaching a class on international politics [who] references or criticizes the government of Israel’s treatment of non-Jewish people, the nation of Saudi Arabia’s response to religious extremism, or the government of India’s promotion of Hinduism . . . would not likely implicate Title VI” as long as such comments do not target students based on race, color, or national origin.
And it includes a reference to a 1982 district court Title VII case that holds that comments concerning the “Arab–Israeli conflict” and the Israeli prime minister were “political opinions rather than disparagements of Judaism” that would constitute unlawful religious harassment under Title VII.
But the guidance notes that Title VI could be implicated if the professor refers to “offensive stereotypes” or engages in differential treatment during an academic or political discussion.
It cites words (e.g., terrorist)
that, in certain contexts, are used as racial or religious epithets (e.g., Zionists, Zio, pro-Hamas). It also states that “political protest on its own does not typically implicate Title VI” but that it would open an investigation based on “protest signs . . . [that] targeted specific Jewish students using ethnic stereotypes.”
These First Amendment concerns associated with Title VI harassment law and regulation might in theory be reconciled through the high standard for proving harassment and the context-specific nature of its application. The Department of Education has long emphasized that its determination of whether a hostile environment exists on a particular campus will depend on the totality of the circumstances.
Eidelson and Hellman, who examine the doctrinal questions involved in applying Title VI to antisemitism, argue that the hostile environment test, if applied consistently and with regard for the university context, can operate to safeguard free expression.
In particular, they contend that courts and administrators should incorporate the “speech-friendly” baseline that exists in higher education settings.
In universities, unlike in elementary and secondary school settings, they argue that, in and around the classroom, students “assume the risk that they will confront . . . almost any of the messages and ideas they might encounter on the street corner.”
A reasonable university student should expect to be offended by political expression because it is specially connected to the “organizing purpose of the institution.”
C. Emerging Principles
In the absence of clear agency guidance, it may be left to courts to sort through how to best balance free expression and Title VI. An instructive approach was taken by a judge in the Southern District of New York in Gartenberg v. Cooper Union for the Advancement of Science & Art
in evaluating a Title VI claim filed by a group of Jewish students claiming that Cooper Union’s administration was deliberately indifferent to harassment by pro-Palestinian demonstrators and other antisemitic acts on campus.
The actions included defacement of property, tearing down posters of Israeli hostages, protest chants, and slogans “scrawled in Spanish . . . with lettering that resembled the font used on the front cover of Mein Kampf.”
In one highly publicized incident, a group of demonstrators banged on the doors and floor-to-ceiling windows of a school library and shouted demands to be let in, while a smaller group of students “wearing recognizably Jewish attire” stayed behind the library’s locked doors for twenty minutes; these students did not feel safe leaving, and school administrators “did nothing to disperse the protestors and instead directed law enforcement to stand down . . . as the college’s president . . . escaped the building through a back exit.”
The court held that this type of speech and conduct created a plausible claim of “hostile or abusive . . . discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of [the] educational environment” and thus was sufficient to survive a motion to dismiss.
But reading Title VI consistent with the First Amendment, the court held that the statute did not reach other speech that took place on campus that it characterized as “pure speech on matters of public concern.”
For one, according to the court, “speech ‘on a matter of public concern, directed to the college community’” will generally not meet the high standard for proving hostility or offensiveness required by Davis: “[A] reasonable person should understand that speech on matters of public concern, directed to the community at large through generally accepted methods of communication, is very different than targeted, personal harassment aimed at a particular person.”
The court also construed the “deliberate indifference” standard in light of the First Amendment by holding that a university’s failure to censor or punish “political speech directed at the college community” will rarely meet that standard and that academic freedom counsels for judicial deference to a college’s decision to on how to discipline students.
A decision by the First Circuit in a Title VI case against MIT holds similarly that the First Amendment “erects safeguards that limit the ability of the government or private plaintiffs to punish MIT for not restricting more severely the student protestors’ protected speech.”
Affirming the trial court’s dismissal, the court held that the pro-Palestinian, “anti-Zionist” protesters’ chants and signs constituted political speech criticizing Israel and that there was no showing by the plaintiffs that this criticism was motivated by antisemitism.
In this decision then, both the high “severe, pervasive and objectively offensive” harassment standard and the First Amendment’s protection for political speech operated to limit liability.
Future cases may come out differently, but the approach taken by these two courts resonates with the commentary described in section III.B and may be able to guide universities in crafting policies that attend to both free expression and inclusion. First, there is a wide variety of vandalism, graffiti, and protest activity that universities can prohibit using content-neutral rules that do not involve engagement with the Title VI hostile environment standard.
Second, universities can, consistent with the First Amendment and free expression norms, prohibit harassment targeted at specific individuals or groups of individuals when that harassment rises to the Title VI Davis standard.
As indicated above, the standard is applied on a case-by-case basis, and there will be disagreement as to how to apply these rules to any specific factual scenario; nonetheless it is a demanding, high standard.
Third, as found in Cooper Union, universities should exercise caution and may be prohibited by the First Amendment from disciplining students in situations that do not meet the Davis standard or that involve political speech.
The result of applying these points of agreement may not fully please anyone. Even under these rules, there will likely be variation among campuses (and perhaps within campuses). Prophylactic rules will sometimes curb legitimate expressive activity, and students will still have to tolerate some offensive, uncomfortable, and unpleasant speech on campuses, including speech that may feel harmful to their identity and make it hard for them to fully participate on campus.
This suggests to us that however the doctrinal debates between free expression and Title VI are settled by courts, they are not going to produce the campus climates to which most students, faculty, administrators, and staff aspire. Most universities would rather sustain campus environments in which their students do not burn books or shout down speakers, and in which students reason with each other, disagree respectfully, attempt to bridge understanding, and are sensitive to their fellow students’ backgrounds and identities.
And they would rather not have campuses in which students make continual use of the Title VI complaint process to mediate disagreements and offenses.
In Part III, this Piece discusses some of the strategies that universities might implement to advance student inclusion, thriving, and community citizenship beyond the narrow legal conception of a hostile environment.
III. Community Citizenship: Charting a Path Forward
The discussion thus far suggests that we should be wary of claims casting Title VI as the centerpiece of responses to campus conflicts
given the statute’s limited reach and its misuse by the current Administration to override the autonomy of higher education institutions. Yet the statute’s long history also reminds us of its power and potential when implemented properly.
In an effort to achieve more meaningful and enduring improvements to campus climates, this Part resituates Title VI compliance within a broader framework centered on students’ citizenship in their college or university communities. Several concluding points on regulation and institutional self-governance also aim to restore the now-skewed relationship between government and higher education institutions and support schools in managing campus conflicts and fulfilling the equal opportunity ambitions of Title VI.
A. On Relocating Title VI Compliance Into a Community-Citizenship Framework
The limits of a compliance approach in building a thriving culture, well known in business, are especially vivid in the context of Title VI and campus conflicts.
Disciplinary warnings and investigations may chill protected speech and erode an environment designed to foster free inquiry. Add to that the high bar of the hostile environment doctrine, which means that even vigorous compliance will not alleviate the many educational harms students face due to these conflicts. More generally, because conflicts between robust speech and optimal learning are inherent in the process of students engaging with each other on sensitive or contested issues, a compliance-centric approach seems to miss the forest for the trees.
This critique is not intended to suggest compliance is unimportant or to minimize the difficulties these conflicts present under any approach. Israel–Gaza protests after October 7, 2023, have brought new focus to how sharp these conflicts can be, and other reminders can be found in the fracturing of campuses over student groups in recent years bringing white nationalists and other similarly provocative speakers to campus
and using campus quads to host so-called “affirmative action bake sales” that charge different prices based on the race of the customer.
But the argument here does mean to suggest that leading a response with Title VI compliance is unlikely to help students interact more effectively across their differences or improve the campus climate.
1. The Risks of Leading With Title VI Compliance and the Benefits of Community Citizenship. — A framework focused on community citizenship restores the campus learning environment as the priority and repositions compliance in service of that environment. It also includes two additional elements that are likely to have a greater impact on campus life given the limits of Title VI. First, school-sponsored and -supported affirmative community-building efforts are necessary to foster students’ ability and commitment to express ideas with vigor and collegiality (or at least reduced interpersonal hostility). Students do not necessarily arrive on campus with this skill set. Second, informal mechanisms for de-escalating and resolving conflicts outside of a disciplinary process are also essential to avoid an all-or-nothing response when conflicts inevitably arise. Shifting away from disciplinary enforcement and compliance as the lead approach to student conflict protects against an additional risk of Title VI becoming the proverbial tail that wags the dog. The spotlight never remains steadfastly on a single issue, no matter how important, but community-citizenship work must continue, even as attention and resources drop off predictably when public attention to campus antisemitism moves on.
Resituating Title VI in this way also illuminates how starkly the current Administration’s enforcement project has distorted the relationship between government agencies and higher education institutions. By proposing resolution agreements that specify detailed operational steps schools must take to comply,
agencies have, in effect, positioned themselves as shadow campus administrators. But federal agencies are not schools, and they lack the expertise schools have about how to effectively implement policy and practice changes on campus. Still, the Administration’s unprecedented federal funding threats and terminations have created an environment in which a growing number of institutions are restructuring their operations in the name of Title VI and agency-driven directives.
Leading with community citizenship rather than compliance reinforces the centrality of schools in identifying which actions will be meaningful in their distinctive cultures. This is particularly important given vast variation among the thousands of colleges and universities in the United States that are covered by Title VI—in size, student population, location, staffing, governance, research orientation, and culture (including faith-based, honor code–based, social justice oriented, historically Black and other minority-serving institutions, among others).
No one-size-fits-all strategy will protect students from discrimination and support a robust speech environment, let alone a thriving campus community.
Most fundamentally, a community-citizenship focus is essential to effective campus operations. Nearly all of the hundreds or thousands of students in the entering class of any college or university are new to the institution and to each other. They come from different places, sometimes from great distances, and bring with them diverse backgrounds, experiences, interests, and goals.
For campuses that serve traditional-age undergraduates, most come from a high school setting with closer oversight from responsible adults than they will have in college, and residential students may be living away from parents and caregivers for the first time. All of this leaves colleges and universities with no choice but to acculturate incoming students to their new environments and build up their skills in communicating with each other across differences. Still, even with ideal programming and support, conflict is inevitable, particularly in an environment where large numbers of students hold the view that “speech can be as damaging as physical violence.”
As a result, conflict-response mechanisms, including but not limited to Title VI disciplinary processes, are also essential for schools.
Responding to these realities, the tripartite community-citizenship framework presented here incorporates affirmative community-building and informal conflict-resolution mechanisms alongside Title VI compliance. The following section will elaborate on the first two mechanisms.
2. Affirmative Community Building. — Affirmative community-building takes many forms, from teaching a school song to trainings on campus resources, but for issue-oriented conflicts among students, the crucial task is to develop students’ communication skills—both listening and speaking—and their sense of belonging to a campus community so they can engage constructively with each other, including in disagreements about identity and politics.
Usually initiated at orientation and sometimes continuing in messages from deans and other school leaders that reiterate expectations and institutional values as well as rules, these efforts are more than just a management strategy for a large and sometimes unruly group.
When done well, they not only assist in helping students interact in ways that do not unduly fray the social fabric but also feed into the general educational mission. To be sure, successful implementation requires an investment of time and resources during the semester as well as in the flurry of orientation activities. It can be challenging and requires regular feedback and adjustment. But the payoff for the general educational mission is also significant, as students have stronger skills to support their interactions in class, on teams, and in student organizations, each of which has different expectations regarding permissible and constructive speech but all of which contribute to the learning environment.
This is not to suggest that community-building initiatives should strive for perfect harmony among students or dampen disagreement, though these initiatives will, ideally, aid in reducing the number of disagreements that escalate into conflicts requiring external assistance with de-escalation. Their purpose, instead, is to help students recognize themselves within a broader community and understand how their actions and communications can contribute to and otherwise affect those around them.
Building on the discussion above, one might describe affirmative community-building efforts as engaging with, rather than trying to override, the baked-in tensions between free expression and a robust learning environment. In contrast, while students also should learn about the formal complaint process, foregrounding disciplinary information and warnings ahead of the skills and values just discussed conveys a very different and less constructive message.
3. Informal Conflict Resolution. — The types of issue-oriented conflicts involving speech related to race or national origin, including shared ancestry, vary tremendously. Included in this wide range are individualized verbal confrontations; friction over flags, posters, and messages on dorm room walls and whiteboards; discord related to laptop stickers and sidewalk chalking; gatherings and protests on or near campus buildings; comments in class; and more.
A school without informal resolution options would leave itself with a troubling gap—either sweep a conflict into a Title VI disciplinary process or leave it unaddressed, even if neither of those is a good fit. Informal conflict-management capacity is thus another crucial pillar of a community-citizenship framework.
A full exploration of alternatives to formal disciplinary processes exceeds the scope of this Piece, but some brief descriptions may be helpful. First are the student affairs staff who assist students with conflict de-escalation across a variety of issues, from dorm room cleanliness to freighted disputes involving identity-related speech, on the understanding that any type of conflict may disrupt a student’s learning and well-being.
In some settings, students themselves provide a structure for conflict de-escalation through peer-to-peer problem-solving including through their own ombuds or other services.
For conflicts that require something more structured, mediation or restorative practices bring students together in a supervised process to address an incident and identify steps for accountability and a path forward.
The point of these mechanisms, like informal de-escalation strategies, is not to end vigorous debate but instead to help students understand the way their expressive or behavioral choices may affect others in their community.
Fundamental to both mediation and restorative practices is that students participate only if they consent.
Like other strategies, these will be the right fit for some but not all conflicts.
In addition, formal complaints that involve campus rules violations can sometimes be resolved informally through a faculty- or staff-led discussion with the accused student, particularly when the alleged violation does not involve acts targeted at another student. When a student has violated a disciplinary rule against shouting down a speaker, for example, informal resolution in an education-oriented session with a campus administrator may help that student understand how their speech affected others in the community and why the institution prohibits certain modes of speech, without the defensiveness that usually surfaces when students are the accused in a disciplinary process and facing potential sanctions.
None of these approaches are unique to higher education settings, of course, but they are a particularly good fit given the commitment of colleges and universities to student learning and the development of critical thinking skills in and outside of the classroom. The fact that participation in informal resolution processes is typically voluntary also may relieve some concerns about students being improperly coerced to change their views.
On the other hand, even the most careful nonpunitive mechanisms may have some undesirable chilling or even moderating effect, and, as with any process, these can be misdirected to discourage students from expressing their views or seeking help to stop harassing speech.
But these risks also accompany campus disciplinary processes, which may be over- or underutilized in ways that diminish speech or antidiscrimination protections.
B. A Regulatory and Institutional Self-Governance Approach to Limiting Agency Overreach and Maximizing Expertise
This section argues that it is still possible for Title VI to stimulate government and institutional action to achieve equality and nondiscrimination in the higher education context, drawing from experimentalist insights into the benefits of allocating responsibility for oversight and innovation based on key participants’ knowledge and expertise.
This is not a near-future argument as there is no evidence the current Administration intends to alter its approach. But under an administration committed to following the law, the two points on regulation and three on institutional self-governance set out below aim to show that extant regulations could reorient agencies away from their invasive overreach into schools’ operations and spur schools to innovate in response to racial and other harassment that does not meet the Title VI bar.
First, Title VI regulations as well as statutory language already structure the interaction between government agencies and schools in ways that bring their respective expertise to bear in achieving Title VI’s goals. These provisions as implemented prior to the second Trump Administration meant that government agencies conducted investigations, analyzed evidence, and monitored schools’ compliance with resolution agreements, consistent with the expertise of agency lawyers and other specialists. But the government negotiated the terms of those agreements with input from schools, which have expertise in how to effect change within their campus cultures and operating systems. Under this allocation, it would have been unimaginable for agencies to demand that campuses hire more law enforcement or restructure an academic department—or pressure a university president to resign.
These interventions involve managing a school’s internal operations in ways that stray implausibly far from agency expertise, setting aside questions about agencies’ legal authority to even make such demands.
Further, excessive operational intervention by agencies is likely to disincentivize schools from innovating to achieve compliance goals and improve campus climate consistent with Title VI equality aims.
If agencies tell colleges and universities how to manage their operations to comply with Title VI, why would a school try something different even if it might be more effective?
Second, the federal government, through its singular relationship with every federally funded school in the country, has unique access to practical expertise that it can leverage to support rather than displace schools in eradicating discrimination and advancing equal opportunity consistent with Title VI.
This, too, is a point dependent on a future in which the Trump Administration’s devastating cuts of federal employees have been redressed and its misapplications of the law have been corrected.
In that future, a restored Department of Education could serve again as a central hub for identifying and publicizing promising institutional practices from across the United States that schools can choose to test and modify for use in their own environments.
The Department’s affirmative work in assisting colleges and universities with civil rights compliance has traditionally been more limited, owing to numerous demands on OCR staff for enforcement and other priority efforts as well as concerns that a sample policy or procedure might be misunderstood by schools as either required or sufficient for compliance in their particular setting.
Still, Congress, in its 2022 amendments to the Violence Against Women Act, nudged this institutional-education effort along with a provision requiring the Department to partner with the Departments of Justice and Health and Human Services to collect and share these kinds of practical resources from colleges and universities regarding sexual violence on campuses and Title IX compliance.
No similar effort has been made for Title VI. Whether by statute, regulation, or practice, a different administration with appropriate staffing and resources could have a tremendous opportunity to build on and advance this work.
The next three points turn to institutional self-governance as means of spurring schools to fulfill the promise of Title VI and not just the bare doctrinal minimum. For one, as set out above, the affirmative community-building work to support community citizenship, including initial acculturation and ongoing skills-building, is best understood as a necessary “soft law” component of an institution’s work and should be resourced accordingly. Programs and tools of various sorts are regularly being developed, tested, and adapted to different types of campus environments, and many institutions are already using the changed landscape as a prompt to refresh existing programs and add new ones.
Under a community-citizenship framework, this work is no more optional than compliance with Title VI. Recognizing that students, as well as faculty and staff, will have different levels of interest in—or skepticism toward—these efforts, institutions also bear responsibility for identifying a range of strategies to meet community members where they are and adapt those strategies for effectiveness over time.
Further, colleges and universities should explain to their students not only what the rules are but why campus rules restrict—or don’t restrict—harmful speech related to ideas or identity and how those restrictions relate to institutional values. In other words, the disciplinary-rules explanation should come within a community-citizenship frame. Providing an explanation honors a core academic commitment to reason-giving as a foundation for learning and, more importantly here, doing so in the context of community citizenship enables the school to show that it seeks to offer a learning environment consistent with Title VI’s equal-opportunity aspirations rather than one limited to the disciplinary boundaries of Title VI.
Finally, while campus disciplinary processes inevitably generate anxiety for students involved in them and criticism from those who disagree with their outcomes or even their use, confusing or complicated institutional communications about policies and procedures can exacerbate these challenges. In this, there is much to be learned from the Title IX context in which legalistic policies confused students on both sides of cases, leading many observers to express doubts about fairness, regardless of outcome.
Over time, schools began to rewrite policies in language accessible to students, create clear webpages, design engaging programming, and even issue annual reports to demystify the rules, the disciplinary process, and the resources available to students.
None of this is a panacea, but there is little excuse for not taking these steps for Title VI processes as well, and thereby supporting community citizenship through better access to information and reduced barriers to the community’s trust.
Conclusion
On an active college or university campus, tensions from speech about race, ethnicity, and national origin, including shared ancestry, often simmer just below the surface as students interact across their differences in background, views, identity, and more. Viewed through this lens, occasional sharp conflicts do not, by themselves, mean a school has failed. Given the tension inherent in supporting free inquiry and a robust learning environment for all students, the problem, instead, is when schools are surprised or underprepared.
The current Administration’s punitive use of Title VI misleadingly urges schools to treat Title VI as the answer for averting or managing these conflicts. By threatening institutional funding while skipping over the statute’s restrictive procedural requirements, the Administration transformed Title VI from an important tool for addressing discrimination at schools and universities to a high-pressure and startlingly broad lever on schools to revamp admissions; curriculum; nondiscriminatory diversity, equity, and inclusion programming; and governance. Whatever one thinks of its motives, these actions suggest no meaningful interest in pressing higher education institutions to achieve Title VI’s inclusionary aims as reflected in the statute and its decades-long implementation history.
Relocating Title VI compliance in a broader set of institutional responsibilities centered on community citizenship holds far more promise for achieving those aims and preparing schools for inevitable conflicts among students. To be sure, the changes this Piece suggests to federal engagement on these issues are highly unlikely to be adopted by the current Administration, though schools would be well advised to attend now to the ways they foster campus community citizenship, including through conflict de-escalation, skills-building, and informal conflict-resolution processes, along with their formal Title VI compliance mechanisms.
Still, by putting recent events in the context of the statute’s sixty-one-year history, this Piece hopes to reinvigorate discussion of Title VI in ways that build on the statute’s strengths and also recognize its limits in responding to speech-based conflicts in higher education environments. As importantly, the discussion here seeks to ensure these limits are not the end of the conversation but rather an urgent reminder that the aims of Title VI will be achieved best not through enforcement alone but as part of a broader commitment to a thriving campus.