This is better than your previous posts on the topic, because it at least acknowledges that quite a lot of non-protected violent forms of harassment were going on that should be legally dealt with. So long as we have room to enforce those rules (and punish schools that refuse to do so), I could potentially get on board.
(That said the situation now is still severe under enforcement, so even if I agree that excess enforcement is theoretically possible I'm more focused on doing more for the cases of actual violence for now).
FIRE and I have actually been banging this drum for a while (see, e.g., https://www.thefire.org/news/columbia-needs-stop-doing-politics-and-start-doing-higher-education). Colleges have done themselves an enormous disservice by not enforcing their viewpoint-neutral rules when it seemed "hard" to do so. And by "hard" I do not mean they don't know how to enforce their rules. They are frequently happy to enforce entirely imaginary versions of their rules! (Here's Columbia doing that just this spring: https://www.thefire.org/cases/columbia-university-conservative-catholic-student-forced-attend-mandatory-educational.) It's "hard," rather, because instead of having a Golden Rule or "equal justice under law" mindset, they have a Lenin-inspired "Who? Whom?" mindset where justice is defined by their "team" getting favorable treatment and the other team unfavorable treatment. So when they see their team violating the rules, it's next to impossible for them to imagine evenly applying the rules without favoritism. This was always doomed to blow up in their face, and now it has.
What this amounts to is that FIRE loves what they think is political speech so much, they are willing to allow the creation of a hostile environment for students by other students by means of continuous defamatory hate speech, as long as the speech is declared to be political (by whom, exactly?). I suppose that the objects of this repeated, abusive speech would then just have to suck it up, civil rights be damned. Bad luck for them!
The law is clear, is it not, that the administration has a duty to prevent verbal assaults on students by other students that interfere with their education, under Title VI? Under FIRE's interpretation, how is that duty to be fulfilled? Who is supposed to decide whether speech falls in that special political category? There are no objective standards. Why not just let the President do it?
The absurdity of this proposition is easy to see in other contexts. Management tolerance of repeated demeaning statements by male employees that female employees don't belong in the workplace would make the firm subject to legal action under the civil rights laws. Do you have a problem with the "cumulative" part of this? Would it be your position that this is protected religious speech because the speaker claims his motivations are Biblical? This would never fly in any workplace in America. Speech, protected or not, that interferes with the operations of the firm or the ability of employees to do their work is universally sanctioned, and, if repeated, results in immediate termination. The terminated employee has the right to all the free speech he wants on the sidewalk. And this is the way it should be.
Hate speech is legal, of course. You can't be jailed for it. But these universities are private organizations, not the government, and have no obligation to permit it on their campuses. Even in public universities, there are time, place, and manner limitations to speech that are well established in law and that are not nullified because the speech is deemed political by somebody. Given the mandate of Title VI, it is well within the ability of any university administration to impose limitations on speech in pursuit of their educational goals, as indeed they have done for years under voluminous codes of conduct. They can't discriminate by deeming one party's speech as "political" regardless of its impact on other students and the educational mission.
Given the university's mission, you'd hope that the balance between expression and student's rights would be different from a workplace. But the principle stands, and stood for many years until we came to this particular speech, and these particular advocates, to the detriment of this particular minority. We are not talking about study groups, or outspoken opinions in class. Don't insult my intelligence by pretending that this is principled. Just because you've defined a role for yourself to save democracy from the creeping fascism of Big Bad Trump, you don't have the right to throw away other people's civil rights by means of some novel theory.
It's hard not to see in FIRE's argument a determination to privilege the speech of certain parties whose political positions their staff agrees with and whose hate speech they support. If Arab students had to endure for months the "political" speech of protestors who were holding signs and chants saying that Arabs are cockroaches and should be expelled into the desert from which they came, I'm confident that the university would shut down this particular form of "political" speech in a hurry. As they very much should. I'm also confident that FIRE's position and actions on this matter would be quite different.
To my mind, FIRE deserves to lose their case, and Harvard and other schools that have failed in their duty to Jewish students very much deserve the beating they are getting from the Federal government. The Biden administration had the obligation to enforce the provisions of Title VI. The fact that he was derelict in his duty and this duty is now being fulfilled by Trump is not a reason to oppose it. Nobody should be defending these institutions.
As to the bulk of your comment, the workplace is not the same as the campus, which is why we have different statutes (Title VI vs Title VII) and different standards (like Meritor vs. Davis) that cover them. FIRE has written a lot on that.
However, I want to address your assumption that "FIRE's position and actions on this matter would be quite different" if it were happening to Arabs instead of Jewish people. This is simply not true, and I am confident you will not find anything suggesting it is true, as I have been at FIRE for the vast majority of its existence, and have had plenty of cases that would put us crosswise with Arabs or Muslims. A couple off the top of my head are the SFSU College Republicans who were investigated for stomping on the Hezbollah flag (https://www.thefire.org/news/san-francisco-state-university-investigates-students-anti-terrorism-protest) and the whole saga of the Mohammed Cartoons: https://www.thefire.org/search?keywords=mohammed+cartoons
Oliver Wendell Holmes. Jr. noted that the law is not a thing in itself but an instrument that society uses to regulate its activities. I’m trying to call attention to the bigger picture of a process that is in the legal weeds and is missing the most fundamental elements.
The academic and employment titles are both founded on the understanding that legal rights are of no value if the institutions through which these rights are exercised are allowed to evade responsibility for the environment that they create. Title VI was written in direct response to the ordeal that black students had to endure at Southern universities. This included actual harassment and violence, but also speech and non-criminal actions aimed at ostracizing and socially humiliating black students. So this background definitely included what you would call “cumulative” impacts. It is all of a piece: either you protect civil rights, or you don’t.
The cumulative factor that you minimize has had a great impact in the lives of Jewish students for quite some time. Harvard and Columbia, in particular, have long had well-merited reputations as being hostile to Jews, and the protests have supercharged this process. The upshot now is that Jews are in the process of being functionally locked out of America’s most prestigious institutions. This is not what civil rights law is about. The ADL has published a helpful guide to universities for worried parents, rating the degree of open antisemitism that is permitted on various campuses. It is a disgrace to our country that there should be a need for this.
Whether some frat boys stomp on a Hezbollah flag now and then is not remotely comparable to this in principle, scale, or effects. Since desegregation, we have never had a problem where a group of students has targeted another group of students in this organized fashion over a long term. Thus, the identity of those groups, and who is on the giving and receiving end, matters. You don’t get a pass by saying “we annoy Arabs too sometimes”. The concept that these things can be seriously equated or confused is just stupefying to me. It is complicity with great injustice.
Universities have been creating speech regulations for decades to ensure that academic debate and learning can take place in a civilized way and that no students are forced down or out by the hostility of other students. You may say that you are “protecting” universities from government overreach, but in fact you are seeking to take away their responsibility for ensuring that students’ civil rights are protected from the hostility of fellow students. You are protecting the universities at the expense of the students. I prefer the opposite.
This is better than your previous posts on the topic, because it at least acknowledges that quite a lot of non-protected violent forms of harassment were going on that should be legally dealt with. So long as we have room to enforce those rules (and punish schools that refuse to do so), I could potentially get on board.
(That said the situation now is still severe under enforcement, so even if I agree that excess enforcement is theoretically possible I'm more focused on doing more for the cases of actual violence for now).
FIRE and I have actually been banging this drum for a while (see, e.g., https://www.thefire.org/news/columbia-needs-stop-doing-politics-and-start-doing-higher-education). Colleges have done themselves an enormous disservice by not enforcing their viewpoint-neutral rules when it seemed "hard" to do so. And by "hard" I do not mean they don't know how to enforce their rules. They are frequently happy to enforce entirely imaginary versions of their rules! (Here's Columbia doing that just this spring: https://www.thefire.org/cases/columbia-university-conservative-catholic-student-forced-attend-mandatory-educational.) It's "hard," rather, because instead of having a Golden Rule or "equal justice under law" mindset, they have a Lenin-inspired "Who? Whom?" mindset where justice is defined by their "team" getting favorable treatment and the other team unfavorable treatment. So when they see their team violating the rules, it's next to impossible for them to imagine evenly applying the rules without favoritism. This was always doomed to blow up in their face, and now it has.
What this amounts to is that FIRE loves what they think is political speech so much, they are willing to allow the creation of a hostile environment for students by other students by means of continuous defamatory hate speech, as long as the speech is declared to be political (by whom, exactly?). I suppose that the objects of this repeated, abusive speech would then just have to suck it up, civil rights be damned. Bad luck for them!
The law is clear, is it not, that the administration has a duty to prevent verbal assaults on students by other students that interfere with their education, under Title VI? Under FIRE's interpretation, how is that duty to be fulfilled? Who is supposed to decide whether speech falls in that special political category? There are no objective standards. Why not just let the President do it?
The absurdity of this proposition is easy to see in other contexts. Management tolerance of repeated demeaning statements by male employees that female employees don't belong in the workplace would make the firm subject to legal action under the civil rights laws. Do you have a problem with the "cumulative" part of this? Would it be your position that this is protected religious speech because the speaker claims his motivations are Biblical? This would never fly in any workplace in America. Speech, protected or not, that interferes with the operations of the firm or the ability of employees to do their work is universally sanctioned, and, if repeated, results in immediate termination. The terminated employee has the right to all the free speech he wants on the sidewalk. And this is the way it should be.
Hate speech is legal, of course. You can't be jailed for it. But these universities are private organizations, not the government, and have no obligation to permit it on their campuses. Even in public universities, there are time, place, and manner limitations to speech that are well established in law and that are not nullified because the speech is deemed political by somebody. Given the mandate of Title VI, it is well within the ability of any university administration to impose limitations on speech in pursuit of their educational goals, as indeed they have done for years under voluminous codes of conduct. They can't discriminate by deeming one party's speech as "political" regardless of its impact on other students and the educational mission.
Given the university's mission, you'd hope that the balance between expression and student's rights would be different from a workplace. But the principle stands, and stood for many years until we came to this particular speech, and these particular advocates, to the detriment of this particular minority. We are not talking about study groups, or outspoken opinions in class. Don't insult my intelligence by pretending that this is principled. Just because you've defined a role for yourself to save democracy from the creeping fascism of Big Bad Trump, you don't have the right to throw away other people's civil rights by means of some novel theory.
It's hard not to see in FIRE's argument a determination to privilege the speech of certain parties whose political positions their staff agrees with and whose hate speech they support. If Arab students had to endure for months the "political" speech of protestors who were holding signs and chants saying that Arabs are cockroaches and should be expelled into the desert from which they came, I'm confident that the university would shut down this particular form of "political" speech in a hurry. As they very much should. I'm also confident that FIRE's position and actions on this matter would be quite different.
To my mind, FIRE deserves to lose their case, and Harvard and other schools that have failed in their duty to Jewish students very much deserve the beating they are getting from the Federal government. The Biden administration had the obligation to enforce the provisions of Title VI. The fact that he was derelict in his duty and this duty is now being fulfilled by Trump is not a reason to oppose it. Nobody should be defending these institutions.
As to the bulk of your comment, the workplace is not the same as the campus, which is why we have different statutes (Title VI vs Title VII) and different standards (like Meritor vs. Davis) that cover them. FIRE has written a lot on that.
However, I want to address your assumption that "FIRE's position and actions on this matter would be quite different" if it were happening to Arabs instead of Jewish people. This is simply not true, and I am confident you will not find anything suggesting it is true, as I have been at FIRE for the vast majority of its existence, and have had plenty of cases that would put us crosswise with Arabs or Muslims. A couple off the top of my head are the SFSU College Republicans who were investigated for stomping on the Hezbollah flag (https://www.thefire.org/news/san-francisco-state-university-investigates-students-anti-terrorism-protest) and the whole saga of the Mohammed Cartoons: https://www.thefire.org/search?keywords=mohammed+cartoons
Oliver Wendell Holmes. Jr. noted that the law is not a thing in itself but an instrument that society uses to regulate its activities. I’m trying to call attention to the bigger picture of a process that is in the legal weeds and is missing the most fundamental elements.
The academic and employment titles are both founded on the understanding that legal rights are of no value if the institutions through which these rights are exercised are allowed to evade responsibility for the environment that they create. Title VI was written in direct response to the ordeal that black students had to endure at Southern universities. This included actual harassment and violence, but also speech and non-criminal actions aimed at ostracizing and socially humiliating black students. So this background definitely included what you would call “cumulative” impacts. It is all of a piece: either you protect civil rights, or you don’t.
The cumulative factor that you minimize has had a great impact in the lives of Jewish students for quite some time. Harvard and Columbia, in particular, have long had well-merited reputations as being hostile to Jews, and the protests have supercharged this process. The upshot now is that Jews are in the process of being functionally locked out of America’s most prestigious institutions. This is not what civil rights law is about. The ADL has published a helpful guide to universities for worried parents, rating the degree of open antisemitism that is permitted on various campuses. It is a disgrace to our country that there should be a need for this.
Whether some frat boys stomp on a Hezbollah flag now and then is not remotely comparable to this in principle, scale, or effects. Since desegregation, we have never had a problem where a group of students has targeted another group of students in this organized fashion over a long term. Thus, the identity of those groups, and who is on the giving and receiving end, matters. You don’t get a pass by saying “we annoy Arabs too sometimes”. The concept that these things can be seriously equated or confused is just stupefying to me. It is complicity with great injustice.
Universities have been creating speech regulations for decades to ensure that academic debate and learning can take place in a civilized way and that no students are forced down or out by the hostility of other students. You may say that you are “protecting” universities from government overreach, but in fact you are seeking to take away their responsibility for ensuring that students’ civil rights are protected from the hostility of fellow students. You are protecting the universities at the expense of the students. I prefer the opposite.