Fed investigation of Lafayette College over Israel-Hamas protests highlights new threat to free speech

As FIRE reported last Thursday, the U.S. Department of Education’s Office for Civil Rights has begun to release conclusions of its investigations into ethnic discrimination complaints filed over the campus protests and counterprotests regarding the Israel-Hamas war, starting with its findings regarding the University of Michigan, the City University of New York system, and Lafayette College.

As FIRE’s research and advocacy has shown, colleges are notoriously bad at investigating accusations of harassment, though Lafayette College comes off better than the other two. While the CUNY and University of Michigan resolution letters are heavily — and unjustifiably — redacted, even what remains suggests the institutions let political motivations or personal preferences guide some of their responses to complaints. For example, the CUNY resolution letter recounts an incident at Brooklyn College where white students were told to “keep quiet” over allegations that Jewish students were being bullied on campus:

The complaint alleged that on [redacted content] 2020, a student (Student E) spoke to the Deputy Director regarding Student E’s concerns about the bullying and harassment that Jewish students were experiencing (Report 1). The complaint asserted that the Deputy Director responded by stating that white students [redacted content] (Student F) should “keep quiet” and “keep their heads down” and that Student E’s [redacted content] would not save Student E. . . . The complaint asserted that Student E also interpreted the Deputy Director’s comment to imply that because Student E is [redacted content], she is considered [redacted content] and privileged. 

Even with OCR’s excessive redactions, if this account is anywhere near accurate, it’s impossible to imagine it could be an appropriate response by CUNY to a complaint of ethnic discrimination. The Michigan resolution letter also outlines some complaints the school may have mishandled, including one that took more than four months to investigate, as well as confusion over where and how to report alleged discrimination. 

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In contrast, the Lafayette resolution letter paints a far more positive picture of the school’s behavior. While Lafayette College is private, it promises students freedom of speech. OCR describes Lafayette’s policy as saying that “when speech or conduct is protected by academic freedom and/or the First Amendment, it will not be considered a violation of College policy, though supportive measures will be offered to those impacted.” 

And Lafayette appears to have consistently tried to address complaints about controversial speech on campus and on social media while refusing to explicitly censor students’ political opinions. Yet OCR’s conclusion is somehow the same as at CUNY or Michigan: The college failed to meet its obligations under Title VI, the federal law prohibiting discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance, which includes nearly all colleges. (Title IX applies to sex discrimination.)

Lafayette College’s attempts to referee conflicts over the Israel-Hamas war

The Lafayette letter leads off with a description of an Oct. 25, 2023 rally on campus where a pro-Palestinian student held up a poster saying “From the River to the Sea,” a well-known slogan pro-Israel advocates interpret as a call for elimination of Israel as a state, and possibly also the removal or killing of all Jewish people in the area between the Jordan River and Mediterranean Sea. As with nearly everything surrounding this issue, the meaning is hotly debated, but as FIRE Legal Director Will Creeley wrote last year, simply uttering the phrase without any other form of threatening language or conduct is protected under the First Amendment. 

Students immediately met with Lafayette’s president to complain about the poster, and the College Chaplain (who is also chair of Lafayette’s Bias Response Team, its Director of Educational Equity, and its Title IX Coordinator) called the student who held the poster and “informed the student that the phrase was hurtful and could be viewed as antisemitic.” 

Lafayette’s president also emailed the campus community about the poster, and the campus group that organized the protest issued a letter saying “we stand against and detest hate speech. Our core values include combating antisemitism, Islamophobia, and oppression in all forms.” 

A few days later, the chaplain met with the poster-holding student again, who said he wouldn’t hold that poster again in future protests. (It’s not clear whether the student actually changed his mind about the slogan or was just scared into silence.)

OCR followed this with a recounting of “11 other incidents of alleged harassment on the basis of shared ancestry that were reported during the fall 2023 semester,” according to the investigation. Six of these appear solely related to social media posts featuring protected speech that the reporting party found offensive. This included statements such as a post “compar[ing] a Palestinian dying with Jesus dying, and stat[ing] ‘Same Picture, Same Land, Same Perpetrator,’” a meme depicting “an Israel Defense Forces soldier as the same as a Nazi soldier and states ‘The irony of becoming what you once hated,’” and the allegation that “Israel kills a Palestinian baby every 15 minutes.”

In each case, OCR describes some action the college took in response to the complaint. In response to the post about Jesus (OCR calls it “Incident 1”), an internal college email noted (correctly) that the post “does not appear to be a direct threat or targeted at any specific individual. With that being said, this would fall within the student’s free speech in their personal social media account.” 

It’s hard to see what else Lafayette could have done to try to address the allegedly hostile environment on its campus without actually descending into censorship. 

The College Chaplain then “informed the reporting student that it was ‘a free speech issue’ and offered the reporting student supportive services.” 

In response to the post comparing the IDF to Nazis (“Incident 4”), the college again found (correctly) the speech was protected, but nonetheless, “the College Chaplain offered to have a mediated conversation with the reporting student and respondent student, but the reporting student declined.” In each of the six incidents involving social media, the school followed a similar course: declining to punish the student for speech while trying to intervene and educate in other ways. 

But that didn’t seem to matter to OCR. In fact, OCR seems to have flatly misstated what the college did in response to these reports. In the legal analysis section of its report on Lafayette College, OCR writes:

Based on the evidence to date, OCR is concerned that notwithstanding the College’s many efforts to respond proactively to prevent the operation of a hostile environment based on shared ancestry during fall 2023, the College’s practices particularly with respect to notice of harassing conduct on social media were not reasonably designed, as required by Title VI, to redress any hostile environment. The College appears to have operated a categorical policy not to address allegations of harassment on private social media — as distinct from social media of a College-recognized student group as in Incident 9 — unless the harassment constituted a direct threat. This practice does not satisfy the Title VI obligation to take prompt and effective steps to redress a hostile environment about which the College knows; that requirement is not limited to conduct that occurs on campus or outside social media.

It is simply untrue to say Lafayette had a “categorical policy not to address allegations of harassment on private social media.” OCR knows this, as it describes what the college did to respond to such allegations in the very same letter (specifically, what OCR labels Incidents 1, 2, 4, and 5).

Now, Lafayette did have a policy of not formally punishing students or student groups for their protected speech on social media, which is what FIRE recommends. But in every “incident” discussed, the college tried to do something to address the complaint, even if the reporting party was ultimately unresponsive. If anything, Lafayette was a bit heavy-handed: Most students would think twice about posting on Instagram after being called on the carpet by the college chaplain to “discuss” their political opinions. (Indeed, it was only five years ago that the Sixth Circuit took issue with University of Michigan’s bias response team for similar speech-chilling activity.)  

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It’s hard to see what else Lafayette could have done to try to address the allegedly hostile environment on its campus without actually descending into censorship. Along with the interventions discussed above, it held meetings with multiple Jewish, interfaith, and Greek student groups and held an interfaith vigil after the October 7 attack. It even “provided OCR with affidavits . . . that the College is ‘a good place to be a Jewish student,’ and that none had observed or heard from Jewish students that they felt that there was any pattern of harassment or discrimination.” 

That didn’t matter. Nor did it matter that those affidavits were from “the Director of Hillel Society, the former Director of Hillel Society, the current Chair of Jewish Studies, and the campus police lieutenant,” all of whom had some reason to know.

“College documents reflect that it did not address whether social media and off campus conduct individually or collectively created or contributed to a hostile environment based on shared ancestry, which does not satisfy Title VI,” according to OCR. Yet Lafayette tried everything to address the complaints except formally punish students for their speech. 

The implication is thus clear: the only way to satisfy OCR that your institution is obeying the law is to silence “offensive” speech, regardless of the First Amendment or college policies protecting students’ rights. For an agency prevented by the First Amendment from requiring institutions to censor protected speech, that implication is disturbing indeed.