Harvard was recently issued multiple subpoenas for allegedly obstructing a congressional investigation into campus antisemitism.

Rep. Virginia Foxx (R-NC) hopes the subpoenas will “serve as a wake-up call to Harvard that Congress will not tolerate antisemitic hate in its classrooms or on campus.” While Harvard and several other universities face congressional scrutiny for their conduct in the wake of Oct. 7, they face much larger legal hurdles from within their own campuses. 

Students from Harvard, the University of Pennsylvania, New York University, and other colleges claim the schools violated Title VI of the 1964 Civil Rights Act, which prohibits programs that accept federal funding, including most public and private colleges, from discriminating against students “on the basis of race, color, or national origin.” 

The complaint filed against Penn claims the university has “transformed itself into an incubation lab for virulent anti-Jewish hatred, harassment, and discrimination” by allowing continuous demonstrations of antisemitism without consequence. 

Similarly, the NYU complaint alleges that Jewish students are “regularly confronted with such genocidal chants as ‘Hitler was right’ [and] ‘gas the Jews.’”

For their part, Harvard students report a takeover of the law school’s student lounge for an entire semester, which the students used to orchestrate “incessant antisemitic agitation,” plan anti-Israel protests, and accost Jewish students, all in clear violation of Harvard’s policies, which remained unenforced as Jewish students avoided the area. 

Perhaps not surprisingly, the leaders of these elite universities say they must be careful not to punish students for engaging in protected political speech. That may be true, but while they pay homage to First Amendment principles, the presidents of these elite schools are not bound by the dictates of the amendment, which prohibits government, not private, censorship.

Moreover, plaintiffs in these cases aren’t objecting to legitimate political commentary about the Israeli-Palestinian conflict. They are objecting to harassing conduct and, more specifically, to the fact that their universities have used free speech principles as a fig leaf to justify inaction against antisemitism. 

Even at a state college, the First Amendment might protect offensive speech, but it does not protect unlawful conduct, even when that conduct has an expressive element. To put it plainly, genocidal statements meant to intimidate or incite violence exceed the bounds of the First Amendment. Despite statements from university leaders such as Claudine Gay, it is clear cut.

So do these complaints raise valid federal claims? Title VI prohibits only discrimination by the schools themselves, not by students against other students. And so, for these lawsuits to succeed in court, the students must show that the harassment was severe and pervasive and that school administrators knew about the harassment and failed to take action to stop it.

Because a school that doesn’t take complaints of harassment seriously places itself in legal jeopardy, universities usually bend over backward to punish offensive speech about women or minorities, even when doing so violates the First Amendment values they purport to uphold.

How ironic that the same universities that create “safe spaces” for their students and punish improper pronoun usage now argue that calls for genocide can be benign.

The purpose of Title VI is simple: to prevent institutions that accept federal aid from treating some classes of students unfairly or differently from others. But by cracking down harshly on racist or sexual speech while dismissing the claims of Jewish students, that is exactly what these universities are doing: treating Jewish students differently than their peers from other groups. 

The law is not meant to shield students from the controversial and often objectionable speech that inevitably accompanies an intellectually diverse academic environment. But when a school ignores or does little to remedy speech that has metastasized into targeted harassment that prevents students from learning, the school has discriminated in violation of Title VI.

Harvard and other elite universities cannot have a zero-tolerance policy for gender and race harassment while looking the other way from harassment of Jewish students. That is the very definition of unequal treatment. And it violates federal law.