Ann Arbor (Informed Comment) – Erik Uebelacker at Courthouse News Service reports that a three-judge appeals panel of the US Court of Appeals, First Circuit, in Boston, struck down a lawsuit by a pro-Israel pressure group against the Massachusetts Institute of Technology (MIT) alleging that the university permitted pro-Palestine students to harass Jewish students.
The three judges were “U.S. Circuit Judge William Kayatta, a Barack Obama appointee, U.S. Circuit Judge Gustavo Gelpí, a Joe Biden appointee and U.S. District Judge William Smith, a George W. Bush appointee.”
The California-based Stand With US Center for Legal Justice joined two MIT students in alleging that the university’s failure to ban pro-Palestine activism constituted discrimination against Jewish students on campus that violated the federal Title VI.
In their ruling, the three judges disagreed. It is one of the more important rulings in the history of the First Amendment, and has profound implications for our own moment, in which the Trump administration (more specifically White House Chief of Staff Stephen Miller) is attempting to inflict profound economic and other damage on American research universities under the pretext that they are antisemitic in their policies or have coddled antisemitism.
Jewish American students, faculty and staff should never face discrimination on campus, but rather deserve to be treated with warmth and collegiality, like all members of the university community. Atisemitism is certainly a significant problem in American society that must be determinedly combated.
Groups such as the Stand With US Center for Legal Justice, however, construe criticism of Israeli government policies as a form of antisemitism, a stance that violates the US Constitution’s first amendment. That is, for one student in a class to speak demeaningly or pejoratively of another student’s ethnicity is unacceptable. But for the student to criticize the policies of a foreign government, however vehemently, is protected speech.
The plaintiffs alleged that “the MIT Coalition Against Apartheid and another student group, Palestine@MIT, sent an email to all undergraduate students with a “Joint Statement on the Current Situation in Palestine.” The statement said, among other things, that the student groups “h[e]ld the Israeli regime responsible for all unfolding violence”; “unequivocally denounce[d] the Israeli occupation, its racist apartheid system, and its military rule”; and “affirm[ed] the right of all occupied people to resist oppression and colonization.” It was signed “[u]ntil liberation.”
The plaintiffs alleged that the university’s complaisance toward these and other activities constituted a violation of the Title VI prohibition on discrimination on the basis of race, color, or national origin. Such discrimination would take the form of being excluded “from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance.”
Or by check:
Juan Cole
P. O. Box 4218,
Ann Arbor, MI 48104-2548
USA
(Remember, make the checks out to “Juan Cole” or they can’t be cashed)
The plaintiffs certainly could not show that any such practical discrimination arose from the activities of the pro-Palestinian students. Jewish students weren’t barred from participating in any programs. During their participation, they might have heard sentiments with which they disagreed with, but that is a different matter. The plaintiffs tried to make an analogy to sexual harassment under Title IX, I guess holding that subjecting Jewish students to claims for Palestinian rights is like boys sexually harassing girls.
The judges did not dispute the analogy, but they didn’t find any evidence of pro-Palestinian students doing anything like that, and they couldn’t see why MIT should be blamed even if they had:
“this theory fails for two independent reasons. First, Plaintiffs’ allegations do not plausibly rise to the level of actionable harassment required by Title VI. Second, even if the protestors’ conduct as a whole was actionable harassment under Title VI, MIT is not liable because it was not deliberately indifferent to the effects of the protests on Jewish and Israeli students.”
In short, the pro-Palestine student groups were not guilty of actionable racial harassment. They were engaging in protected speech. It is illogical to hold that Title VI was intended to overturn the first amendment, which goes like this: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
So the judges held that 1) the pro-Palestine groups were exercising a first amendment right. 2) Gathering on campus and protesting and setting up an encampment were not antisemitic acts, and they were also protected speech. 3) Even if some antisemitic speech did occasionally occur during these protests, it wasn’t “sufficiently severe, pervasive, and offensive to constitute actionable harassment under Title VI.”
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The panel pointed out that public speech about matters of intense debate has been held by the Supreme Court to have special protections under the first amendment. Their ace in the hole here is the 2011 case of Snyder v. Phelps, which protected the right of protesters from the Westboro Baptist Church to stand on a sidewalk outside the funeral for a deceased soldier and chant things like “God hates you” and “Thank God for dead soldiers.” The church members viewed American war deaths in Iraq and Afghanistan as God’s punishment for American tolerance for homosexuality. The soldier’s father sued for the infliction of emotional distress, but the Supreme Court sided with the protesters.
So, public speech on matters of national concern in public spaces is permitted even if it is in awful taste and hurts feelings.
The panel also noted a long tradition of the Supreme Court giving special protection to speech on university campuses, since academic freedom is key to the universities’ mission and underlies their very mission, as in e.g. Sweezy v. New Hampshire, (1957).
The judges say that MIT did curb some of the speech of the pro-Palestinian students, but permitted some. As a private institution it has the prerogative of making that call. The question is whether accepting federal funding and therefore Title IV regulations put MIT under the obligation to curb all pro-Palestine speech by students.
The First Circuit judges concluded, clearly not:
“requiring MIT to restrict students’ expression merely because those students opposed Israel and favored the Palestinian cause would infringe upon MIT’s freedom to encourage, rather than suppress, a vigorous exchange of ideas. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 836 (1995) (‘For the University . . . to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses.’).”
The judges dismissed the possibility that by passing Title VI Congress in effect deputized private parties like the Israel lobbies to suppress protected speech. They pointed out that the Supreme Court had ruled against such a Hail Mary pass regarding gun legislation: “see also Sullivan, 376 U.S. at 277 (‘What a [s]tate may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.’).”
That MIT took government money may put it under Title VI regulations regarding what most people would consider clear (facial) discrimination or harassment. But taking that money does not require the university to give up its own first amendment rights or those of its students: “See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 218 (2013) (finding that the First Amendment prohibited a – 25 – statutory provision that ‘demand[ed] that [federal] funding recipients adopt — as their own — the Government’s view on an issue of public concern,’ and thus ‘by its very nature affect[ed] ‘protected conduct outside the scope of the federally funded program'” (quoting Rust v. Sullivan, 500 U.S. 173, 197 (1991))).
This passage seems to me clearly to go beyond the MIT case to attempt to intervene more generally in the Trump administration’s fascistic crackdown on permitted speech on university campuses.
The judges note that the plaintiffs do not allege that the pro-Palestine protesters engaged in name-calling that demeaned Jews. Rather, they are accused of having criticized the actions of the state of Israel. The plaintiffs maintained that criticizing Israel is antisemitic because so many Jews make Zionism part of their identity.
The panel laughed this position out of court. “Plaintiffs are entitled to their own interpretive lens equating anti-Zionism (as they define it) and antisemitism. But it is another matter altogether to insist that others must be bound by plaintiffs’ view. Plaintiffs’ equation finds no consensus support in dictionary definitions. Nor does a review of the academic literature point to any consensus that criticism of Zionism is antisemitic.”
The panel also was willing to consider the other side of the equation. If some speech can be banned because it hurts the feelings of Zionists, then couldn’t other speech be banned that hurts the feelings of Arabs and Muslims? Given that MIT had Israeli students affected by the horrors of October 7, 2023 and Palestinian students whose families were being bombarded by the Israeli Air Force, it is unreasonable to expect the university to police the speech of either side. Basically, what the plaintiffs were asking for implied that the university should ban any discussion of Israel-Palestine on campus at all, which would not only violate the first amendment but also academic freedom and the very terms of the mission of a research university.
The judges just reject out of hand the notion that hostility to Zionist ideology is the same as discriminatory speech toward Jews qua Jews.
It is so nice to see a court strike down a common piece of Zionist propaganda, which implies that you can’t criticize Israel unless you first criticize the other 193 countries in the world. As the judges pointed out, that is just silly:
“We also reject plaintiffs’ implicit contention that the choice to criticize Israel’s actions in Gaza — rather than, for example, choosing to criticize some other alleged atrocity elsewhere in the world — necessarily manifests antisemitism. Political advocacy, by its nature, involves a choice to focus on certain issues or causes over others. Title VI does not preclude the protestors, U.S. university students, from responding to the headlines by choosing Israel as their target, particularly given the protestors’ perception of the significant role played by the United States and U.S.-supplied arms in the conflict between Israelis and Palestinians.” They cite Tinker v. Des Moines (1969), which upheld the rights of students to protest the Vietnam war and to attempt to influence others to adopt their perspective on its wrongness.
That is, a genocide is also unfolding in Sudan, but the US didn’t give Sudan tens of billions of dollars or a constant stream of armaments and ammunition to carry it out. The Gaza conflict mattered to students as Americans.
The panel also rules against the plaintiffs’ allegation that referring to what the Israeli government did to Gaza as a “genocide” is inherently antisemitic:
“plaintiffs claim that accusing Israel of committing genocide against Palestinians is antisemitic. But even prominent Israelis have lodged the same accusation. See, e.g., Omer Bartov, Opinion, I’m a Genocide Scholar. I Know It When I See It., N.Y. Times (July 15, 2025), https://www.nytimes.com/2025/07/15/opinion/israel-gaza- holocaust-genocide-palestinians.html
Photo by Bernd 📷 Dittrich on Unsplash
The judges also don’t agree that slogans such as “from the river to the sea, Palestine will be free” or “intifada revolution” imply a desire to commit genocide against the Jewish people:
“neither slogan says as much on its face, nor do plaintiffs allege facts suggesting that either chant was commonly so construed by the protestors. So plaintiffs must again rely on a theory that they can dictate the interpretation of the protestors’ speech in order to suppress it.”
All university administrators should read this decision and ponder it. And Columbia and Harvard, which adopted the IHRA definition of antisemitism, thus kowtowing to the Israel lobbies, should be ashamed of themselves and should fear a successful suit by Palestinian students citing the First Circuit decision.
A final word from me. Zionists’ special pleading is destructive of reasoned discourse in the United States. Just imagine if any other ethnic group invested in a certain nationality made this sort of demand. What if African-American students sued over criticisms of the dictatorial policies of Isaias Afwerki in Eritrea or Teodoro Obiang in Equatorial Guinea? What if Chinese-American students wanted to bring Title VI action against a university for allowing criticism of Red China? What if Italian-American students sued over criticism of far right-wing Prime Minister Giorgia Meloni or, in a history course, criticism of Benito Mussolini? What if Russian-American students sued over criticisms of Stalin or Putin? I’m a historian. How could we teach Chinese, Italian or Russian history that way? How could we teach Middle Eastern history if criticism of Israeli policy or of the extremist right-wing cabinet of Benjamin Netanyahu is off limits because hearing that might injure the feelings of students brought up to admire the Likud Party (Betar, active in the United States, is the youth wing of extremist right-wing Revisionist Zionism, which also birthed the Likud)?
Moreover, if Americans aren’t free to discuss American foreign policy freely, they are setting themselves up for foreign policy disasters. Veteran CBS journalist Tom Fenton argued that the slight attention American television news broadcasters gave to foreign affairs in the 1990s set the US up for the 9/11 disaster. By making people wary of discussion America’s position in the Middle East, the Israel lobbies are opening us up to severe security dangers.
Zionists have a right to their nationalism. I don’t approve of nationalism in general. But they don’t have a right to repeal the first amendment and destroy the research university to protect Benjamin Netanyahu from criticism.
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