Executive Overreach of Title VI: Censoring Campus Speech

Following the October 2023 Hamas-led attack on Israel and the ensuing Israel-Palestine conflict, college campuses across the United States served as hotbeds for protest in opposition to U.S. involvement in the Middle East. Beginning in April 2024, pro-Palestinian encampments calling for divestment from Israel—most notably at Columbia University—spread to the lawns of over three thousand universities across the nation. [1] As U.S. history shows, college campus protests, spearheaded by students and faculty, is certainly not a new concept. Educational institutions in the United States have long been the grounds overseeing transformative, youth-led protests from the civil rights movement, to anti-Vietnam war demonstrations, to prison divestment efforts, and more. [2] Such activism has triggered nationwide conversation and policy changes. A historical parallel occurred over fifty years ago, in April 1968, when Columbia University’s Democratic Society and Afro-American Society student groups organized protests against the university’s ties to the Vietnam War, that led to thousands of students occupying campus buildings for a week. [3] The university administration involved the police, arresting over seven hundred students and sparking a university shutdown. Nonetheless, the demonstration sparked national protest and attention and prompted Columbia to sever ties with military research and recruitment. [4]

While the nuances of every campus protest change, generally, student activism is often met with intense public scrutiny and discourse, student discipline, university policy changes, administration turnover, and even violent responses from law enforcement. Crackdown from universities that once took pride in their students’ activism can be largely attributed to pressure and threats from the federal government. This is inherently true of the recent pro-Palestinian protests. The Trump administration has released sentiments condemning university encampments, withdrawn funding from universities involved in protests, and attempted to deport noncitizen students involved in pro-Palestinian activism. [5] Even though the Supreme Court has repeatedly affirmed the first amendment right to free speech, especially in educational settings, the current federal administration has argued universities have violated Title VI in their regulation of student speech and activity surrounding the Israel-Palestine conflict.

Title VI of the Civil Rights Act of 1964 prohibits racial and ethnic discrimination in programs that receive federal funding. Since the Supreme Court ruling in Davis v. Monroe County Board of Education (1999), the Department of Education has interpreted Title VI to prohibit federally funded schools from tolerating what the agency has termed a “racially hostile environment.” [6] After school officials were found to have failed to prevent the sexual harassment of LaShonda Davis by another student, the case demonstrated school boards were responsible for averting student-on-student harassment under Title IX of the Education Amendments of 1972. Title IX, which pertains to gender, “prohibits a student from being "excluded from participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any education program or activity receiving Federal financial assistance," and closely resembles Title VI, extending the applicability of Davis v. Monroe County Board of Education to race as well. [7] The Department of Education’s Office of Civil Rights processes Title VI complaints, with Title VI mandates extending to almost five thousand colleges and universities including nearly all private and public institutions of higher education. [8] The Office’s responsibility is to ensure the funding recipient has actual knowledge of the student-on-student harassment, their response is deliberately indifferent, and that harassment is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Title IX and VI applicability hinges on the child’s ability to get an education safely and justly by imperiling federal funding. While the statute is well intended, recent events have begged the question of whether it can be weaponized to risk infringing upon constitutional guarantees.

Despite its responsibility to create safe academic spaces and prevent discrimination, the federal administration has abused its power in regulating Title VI and advancing executive actions that abandon legal precedent and erode the once ironclad right of free speech guaranteed by the United States Constitution. 

The extent to which free speech is permitted—and the degree to which the government can regulate it—is well established by prior Supreme Court decisions. In 1946, Father Arthur Terminiello, a controversial figure, delivered a scathing speech opposing several political and racial groups that attracted a large, and eventually violent, crowd and led to his arrest. In Terminiello v. City of Chicago (1949), the Supreme Court decided that arresting Terminiello infringed on his freedom of speech rights, giving rise to the standard that speech was only to be restricted in cases of which it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." [9] In his majority opinion, Justice William Douglas said, "a function of free speech under our system is to invite dispute,” implying speech may often operate as designed when it incites turmoil. [10] The case introduced the idea of not letting a “heckler’s veto” suppress speech—in other words, the government cannot prohibit or punish speech by reason that it is likely to elicit a belligerent response. [11] Moreover, government suppression of speech is prohibited by indirect means as well. In NRA v. Vullo (2024), the New York State Department of Financial Services, specifically their former superintendent Maria Vullo, was found to have violated the First Amendment by coercing regulated entities to terminate their business relationships with the National Rifle Association (NRA) due to the organization’s pro-gun advocacy. The burden of proof was on the NRA to show the circumstances plausibly imply coercion, namely, Vullo’s actions rationally appear as attempts to suppress speech. [12] The Supreme Court, in this case, unanimously affirmed a well-affirmed principle first established in the 1963 Bantam Books v. Sullivan case—government officials wielding their influence and attempting to coerce private parties to punish or suppress speech infringes on the constitutional right to freedom of speech. [13] In what is now known as the Bantam Books test, government persuasion is not illegal, but the line is drawn at government coercion—communication that is “purely advisory” rather than “coercive in purport.” [14] This means officials cannot invoke the threat of legal sanctions or other means to coerce private actors into imposing restrictions on speech—a form of indirect censorship called jawboning. Better reflecting the reality of government-company interaction, widely accepted interpretations of Bantam Books’ opinion extend beyond the coercion-persuasion test, telling us the First Amendment is violated whenever a government official succeeds in pressuring a private actor into regulating speech they wouldn’t have otherwise voluntarily chosen to do—a feat possible to achieve without solely threatening legal harm. The test therefore truly seeks to differentiate between coercion and persuasion versus “aiding,” “informing,” and “advising,” and while unraveling if government action is the driver of private parties'decisions is not easy, it is a task Bantam Books requires the court to attempt. Factors to consider include the official’s regulatory authority, the language and tone of the communications, how they were interpreted, and whether they referred to adverse consequences. [15]

The federal government is utilizing Title VI under false premises in order to jawbone universities into suppressing pro-Palestinian speech, the same tactic deemed unconstitutional by the courts. Jawboning is infiltrating the realm of universities as government actors are pressuring universities into restricting student and faculty speech that is protected by the First Amendment. In the case of Columbia University, the Education Department’s Office for Civil Rights determined the university violated anti-discrimination laws for not regulating the series of pro-Palestinian protests and encampments on campus and failing to protect Jewish students. However, the Palestinian encampments don’t meet the test established in Davis v. Monroe County Board of Education, as the university itself did not take any active role in denying students “access to educational opportunities” or overseeing harassment “objectively offensive.” The pro-Palestinian encampments at Columbia University were in protest of the university’s ties to the state of Israel and the ongoing situation in the Middle East, advocating against the mass death occuring in the name of the zionist cause. In traditional understandings, Zionism is a conviction about the Land of Israel and anti-Zionism is a political critique, not a form of racial discrimination. [16] Under existing law, disfavoring people because of their beliefs or practices does not amount to race-based disparate treatment protected under Title VI, as the courts have deemed viewpoint discrimination to be unactionable under Title VI.” [17] As the courts have established, “in the context of higher education,...the reasonable student expects to encounter…‘the unfettered exchange of ideas’ concerning a wide range of controversial topics.” [18] Prevailing understandings are that students will come into contact with disfavored viewpoints in university. [19] Moreover, as decided in Terminiello v. City of Chicago, the campus protests at Columbia University fail to meet the criteria of being a “clear and present danger” to the student body. There is no evidence the protests created an imminent threat of lawless action or institutional disruption. [20] Abiding by the law to avoid heckler’s veto, Columbia University had no authority to limit the free speech of students, even if the student’s message was not well received and was likely to produce conflict. However, despite this, the Trump administration threatened over $400 million in federal funding, with more on the line, unless the university adhered to a set of requirements—including rules on protests and supervision of the Middle East studies program—limiting academic freedom. [21] This is an explicit example of jawboning, as the Trump administration is utilizing funding as a means to coerce the university into restricting intellectual liberty.

The DOE’s untransparent and aggressive efforts to enforce Title VI in response to campus protests places pressure on universities to discipline university members and impose restrictions on constitutionally protected speech. [22] We see the federal administration crossing the line into coercion when looking at the Bantam Books v. Sullivan case, not advising universities but threatening to withhold billions in funding and barring international students. The government threat of defaming a university for discrimination, opening an investigation on a university, or withholding federal funding is very impactful and likely incentivizes a university to heed the agency’s demands. Private organizations are likely to comply with soft government pressure at the expense of suppressing speech due to the wealth of discretionary power the government has and can wield to their benefit. The aggressive language of the Trump administration’s condemnation of university protests along with the explicit reference to withholding funding—an adverse consequence—beyond fulfills the Bantam Book’s requirement of plausibly implying coercion. [23] In light of this, Columbia negotiated with the Trump administration, deciding to pay a $200 million fine to restore federal funding—over a billion annually—and committing to restrict protests, appoint an overseer of the Middle East studies department, adopt a new definition of anti-semistism, hire public safety officers with arrest powers, and more. [24] Moreover, 70 students involved in campus protests faced disciplinary action by the university, including suspension and expulsion. [25]

The federal government illegally using Title VI to influence college campuses has a disastrous impact on dialogue, community, and culture at universities, redefining how this generation of students experience liberal education. Arguably the most harmful aspect of jawboning is that it circumvents typical democratic processes and public discourse to achieve an outcome that would typically come through proper legislation and regulation, undermining accountability and degrading the quality of decision making. University leaders are giving precedence to external influences over the experience of faculty members, threatening independent scholarly inquiry. [26] In hopes of appeasing other interests, universities lose the pillar of their mission which is to host critical discourse, intellectual diversity, and disseminate knowledge. [27] These actions are political repression threatening academic freedom. [28] Moreover, targeting education, research, and public speech on particular issues creates a censored environment in which faculty members and students fear repercussions by their university administrations. This is despite the fact that academic freedom particularly in a university setting is firmly established by legal precedent and the Supreme Court has repeatedly recognized the perils of state censorship and control over education. As stated in the 1967 Keyishian v. Board of Regents decision, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom…The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’” [29] The federal administration utilizing Title VI to illegally limit academic freedom opens up the floodgates for government oversight and regulation of universities.

College campuses are the exuberant home to the marketplace of ideas. At the core of liberal education is open speech, discourse, and grappling with challenging and controversial ideas and issues. It is why student protests throughout U.S. history have been so profound and effective—shifting public opinion and leading to federal policy changes. Efforts to repress Palestinian organizing on campus pose a salient constraint on academic freedom and shared governance that doesn’t just stop at the fight for Palestinian rights. The breach of freedom imposed by governmental involvement censoring speech on campus can extend beyond just this movement, when we relinquish legal precedent and misuse of the law goes unchallenged. It is crucial universities and the nation as a whole stand up to fascism and resist this administration’s blatant violation of the Constitution and rule of law to preserve intellectual liberty on the sacred grounds of the U.S.’s higher education. 

Edited by Andrew Chung

[1] Isabelle Taft, “How Universities Cracked Down on Pro-Palestinian Activism,” New York Times, November 25, 2024, https://www.nytimes.com/2024/11/25/us/university-crackdowns-protests-israel-hamas-war.html. 

[2] Danylo Hawaleshka, “The power and risks of camps protests in the US,” Al Jazeera, April 29, 2024, https://www.aljazeera.com/gallery/2024/4/29/the-power-and-risks-of-campus-protests.

[3] “April 23, 1968: Columbia Student Occupation,” Zinn Education Project, https://www.zinnedproject.org/news/tdih/columbia-student-occupation/.

[4] “April 23, 1968: Columbia Student Occupation,” Zinn Education Project, https://www.zinnedproject.org/news/tdih/columbia-student-occupation/.

[5] Myah Ward and Irie Sentner, “Trump’s pro-Palestinian activism crackdown closely mirrors a plan from the creators of Project 2025,” Politico, April 6, 2025, https://www.politico.com/news/2025/04/06/project-2025-project-esther-university-crackdown-plans-00272750.

[6] Benjamin Eidelson and Deborah Hellman, “Antisemitism, Anti-Zionism, and Title VI: A Guide for the Perplexed,” Harvard Law Review 139, no. 1 (June 2025): 6.

[7] U.S. Department of Justice, Civil Rights Division, "Title VI of the Civil Rights Act of 1964," February 21, 2023, https://www.justice.gov/crt/fcs/TitleVI.

[8] Gavriella Fried, “On the Outer Reaches of the Marketplace of Ideas: the Weaponization of Title VI Against Palestinian College Activists,” Journal of Law and Policy 30, no. 1 (December 2021): 160.

[9] Terminiello v. Chicago, 337 U.S. 1 (1949)

[10] Terminiello v. Chicago, 337 U.S. 1 (1949)

[11] Terminiello v. Chicago, 337 U.S. 1 (1949)

[12] National Rifle Association of America v. Vullo, 602 U.S. ___ (2024)

[13] Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)

[14] Genevieve Lakier, “Jawboning as a Problem of Constitutional Evasion,” Knight First Amendment Institute, October 13, 2023,  https://knightcolumbia.org/blog/jawboning-as-a-problem-of-constitutional-evasion-or-why-the-significant-encouragement-test-is-not-so-bad.

[15] Matt Perault, “Jawboning in 2025,” Knight First Amendment Institute, April 3, 2024, https://knightcolumbia.org/blog/jawboning-in-2025.

[16] Gavriella Fried, “On the Outer Reaches of the Marketplace of Ideas: the Weaponization of Title VI Against Palestinian College Activists,” Journal of Law and Policy 30, no. 1 (December 2021): 172.

[17] Benjamin Eidelson and Deborah Hellman, “Antisemitism, Anti-Zionism, and Title VI: A Guide for the Perplexed,” Harvard Law Review 139, no. 1 (June 2025): 23.

[18] Gartenberg v. Cooper Union for the Advancement of Science & Art, No. 24-cv-2669, 2025 WL 401109, at *11 (S.D.N.Y. Feb. 5, 2025)

[19] Benjamin Eidelson and Deborah Hellman, “Antisemitism, Anti-Zionism, and Title VI: A Guide for the Perplexed,” Harvard Law Review 139, no. 1 (June 2025): 14.

[20] Terminiello v. Chicago, 337 U.S. 1 (1949)

[21] Jake Offenhartz, “Under Threat from Trump, Columbia University Agrees to Policy Changes,” AP News, March 21, 2025, https://apnews.com/article/columbia-university-funding-trump-fa70143c715df8fd4ef337c0e1ccf872.

[22] Evelyn Douek and Genevieve Lakier, “Title VI as a Jawbone,” Knight First Amendment Institute, September 26, 2024, https://knightcolumbia.org/blog/title-vi-as-a-jawbone.

[23] Genevieve Lakier, “Jawboning as a Problem of Constitutional Evasion,” Knight First Amendment Institute, October 13, 2023,  https://knightcolumbia.org/blog/jawboning-as-a-problem-of-constitutional-evasion-or-why-the-significant-encouragement-test-is-not-so-bad.

[24] Sharon Otterman, “Columbia Agrees to $200 Million Fine to Settle Fight With Trump,” New York Times, July 23, 2025, https://www.nytimes.com/2025/07/23/nyregion/columbia-trump-funding-deal.html.

[25] Matt Lavietes and Emma Butts, “Columbia University disciplines at least 70 students who took part in campus protests,” NBC News, July 22, 2025, https://www.nbcnews.com/news/us-news/columbia-university-disciplines-students-campus-protests-rcna220283.

[26] Institute for Understanding Middle East Policy Project, “American Higher Education Law and the Pro-Peace Speech Movement,” 2024, https://www.imeupolicyproject.org/papers/american-higher-education-law-propeace-speech.

[27] Institute for Understanding Middle East Policy Project, “American Higher Education Law and the Pro-Peace Speech Movement,” 2024, https://www.imeupolicyproject.org/papers/american-higher-education-law-propeace-speech.

[28] Institute for Understanding Middle East Policy Project, “American Higher Education Law and the Pro-Peace Speech Movement,” 2024, https://www.imeupolicyproject.org/papers/american-higher-education-law-propeace-speech.

[29] Keyishian v. Board of Regents, 385 U.S. 589 (1967)