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WARNING SIGN

Possible Department of Education rule change could undermine protections for Jewish students, Brandeis Center warns

The ED may be considering repealing additional campus free speech protections implemented during the Trump administration

Nan-Cheng Tsai

Duke University

A potential rules change at the Department of Education could undermine regulations that have been used to protect Jewish students’ rights on campus, Ken Marcus, the chairman of the Louis D. Brandeis Center for Human Rights Under Law, cautioned last week.

The Department of Education (ED) recently solicited comments regarding regulations, implemented during the Trump administration, that conditioned grants to higher education institutions on upholding students’ free speech rights. At public schools, these conditions were tied to First Amendment protections, while at private schools they were linked to enforcement of the schools’ own free expression policies. If students could prove in court that their rights had been violated, ED could penalize the schools for noncompliance with the grant conditions.

“This was a potentially big deal because, much of the time, it really isn’t worthwhile for students to seek legal remedies for censorship because there’s not much in the way of money damages,” Marcus explained. “The idea is that this provided a great deal of leverage that would require universities to take these complaints much more seriously.”

The Brandeis Center, which has provided legal support to Jewish students who have faced alleged discrimination on campus, filed a letter with the Department in response to its request for information.

Marcus told Jewish Insider that repealing these protections would remove a tool that has been used to protect Jewish and pro-Israel students. He pointed specifically to the 2021 case of Duke University, where a pro-Israel club was denied recognition based on its views. The Duke student government reversed course in 2022 and voted to recognize the group.

“We were able to insist that the university reverse itself because otherwise this would be a free speech violation that could lead to significant liability for the university,” he said. “This gave the Jewish pro-Israel students a much more powerful tool than they otherwise would have had to address the silencing of pro-Israel perspectives.”

Marcus said that, in some cases, Jewish students are able to bring claims under Title VI of the Civil Rights Act of 1964; the Trump administration issued new rules explicitly including antisemitism as a prohibited form of discrimination under this law. But in other cases, he added, “the stronger claim is based on the freedom of speech.”

“This isn’t the most powerful weapon that we have against anti-Jewish activity on college campuses, but it is an important one,” Marcus said.

Benjamin Ryberg, the COO of the Lawfare Project, which has also provided legal counsel to Jewish students, told JI, “Unless some sort of harm or downside from these conditions is identified, who would object to enhancing protections for free expression on campus for anybody, including minority groups?” Ryberg said.

Marcus argued that the Biden administration’s request for an inquiry suggests it intends to repeal the regulation altogether.

ED’s request for information states that stakeholders had raised concerns that elements of the regulation “unnecessarily go beyond what is required by the courts, encourage campus community members to pursue litigation more frequently and undermine existing campus procedures,” adding additional costs for schools. The document further alleges that the regulations “may incentivize private colleges to limit, eliminate, or reconsider their policies on free speech for fear of losing grant funds.” 

Marcus argued that the latter point “assumes they’re not actually going to honor their free speech policies,” calling the argument “extraordinary.”

ED also noted that the First Amendment already guarantees students’ rights, without these additional regulations, and that schools, students and courts “have historically been responsible for resolving disputes relating to these complex matters where these important principles intersect.”

The Department of Education did not respond to a request for comment.
ED is separately seeking to roll back protections for religious student groups on campuses, which also fall under the free inquiry rule. Critics of the student group rule say that it requires schools to allow religious groups to engage in discrimination, while proponents say it helps protect faith communities on campus.

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