New Administration Outlook: Trump's DOE Letters and Colleges' First Amendment Defenses Against Pretextual Title VI Threats

Key Takeaways

• Anti-discrimination statutes protect against "deliberate indifference" to conditions establishing a hostile environment of antisemitic violence and harassment.
• But those statutes cannot be used to censor legitimate speech and academic research the government simply opposes.
• Colleges and universities targeted by the Trump Administration's letters can bolster their First Amendment defenses with practical steps.

Citing its cancellation of $400 million in federal grants and contracts to Columbia University, the Trump Administration has threatened to revoke federal funds from a total of 60 public and private colleges and universities under Title VI of the Civil Rights Act of 1964, unless these institutions take immediate action to eliminate hostile environments for Jewish students on their campuses.

These are serious threats. Antisemitic violence and harassment on university campuses has increased since Hamas attacked Israel on October 7, 2023, and colleges and universities have an obligation to ensure that Jewish students do not face unlawful discrimination or harassment on their campuses. But when the government wields the threat of Title VI enforcement against providing a forum for legitimate protests, viewpoints, and academic research the government disfavors—and not against actual illegal discriminatory antisemitic conduct—the First Amendment provides a defense.

Title VI Prohibits Deliberate Indifference to Antisemitic Campus Environments

Title VI prohibits recipients of federal funds from discriminating on the basis of race and shared ancestry, see Guardians Ass'n v. Civ. Serv. Comm'n of City of New York, 463 U.S. 582, 599 (1983), and it permits the federal government to "suspend or terminate" federal funds from would-be recipients who do. 28 C.F.R. § 42.108 (setting forth procedures to cancel funding). "The mandate of Title VI is very simple. Stop the discrimination, get the money; continue the discrimination, do not get the money." Guardians Assn. v. Civil Svc. Comm'n,, 463 U.S. at 599.

Because "deliberate indifference" to conditions establishing a hostile environment constitutes unlawful discrimination under Title VI, universities risk losing their federal funding if they have notice of a racially hostile environment and fail to respond adequately to redress it. See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1033 (9th Cir. 1998); Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 664–65 (2d Cir. 2012). This may include failing to address conditions on university campuses that—as a result of unlawful conduct connected to otherwise lawful demonstrations against the Israel-Hamas War—interfere with Jewish students' abilities to access programs, activities, and campus areas free from harassment. Cf. Frankel v. Regents of Univ. of California, 744 F. Supp. 3d 1015, 1028 (C.D. Cal. 2024) (ordering university to eliminate similar conditions to remedy analogous violation of Free Exercise Clause).

The Government Cannot Wield Title VI To Censor Disfavored Ideas

The threats in the Trump Administration's letters appear likely to violate the First Amendment given that the letters demonstrate little interest in actually regulating universities' deliberate indifference to unlawful discrimination, but instead show greater interest in filtering out political ideas the administration dislikes.

Anti-discrimination statutes cannot be used to censor speech the government opposes. See 303 Creative LLC v. Elenis, 600 U.S. 570, 592 (2023). When a regulated entity speaks or provides a forum for others to share their views, the First Amendment "prohibits government officials from subjecting" the regulated entity "to retaliatory actions … for having engaged in [the] protected speech." Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474 (2022). That protection applies even where the government retaliates against a forum for platforming another's speech. See, e.g., Doyle v. James, 733 F. Supp. 3d 191, 204 (W.D.N.Y. 2024). And it applies even where the government retaliates against a regulated entity based on its "perceived association" with other speakers. Adler v. Pataki, 185 F.3d 35, 45 (2d Cir.1999); see also, e.g., Lewis v. Eufaula City Bd. of Educ., 922 F. Supp. 2d 1291, 1302 (M.D. Ala. 2012) (government claimed to have retaliated against a daughter "for the speech of her father").

Of the hundreds of universities in the United States receiving federal funds under Title VI, the Trump Administration's letters are addressed to only a handful that have experienced significant pro-Palestinian demonstrations supporting Hamas since October 7, 2023. The letters, moreover: (1) do not identify any specific incidents of actual harassment or violence (though such incidents have occurred), much less demonstrate how any targeted institution has failed to respond to such incidents; (2) do not direct any specific actions targeted to eliminate those unprotected activities (though the letters vaguely suggest more must be done); and (3) do not, as a result, evidence any patterns of deliberate indifference to unlawful discrimination or harassment (as would be necessary to actually terminate or suspend funding). Instead, the letters generally impugn the viewpoints expressed at these demonstrations raising the specter of funding termination—and the example the administration has already made of Columbia—as a threat. The administration's latest demands to force Columbia into making unrelated concessions involving its admissions process and academic programs only underscore the administration's intent to use its spending power to censor, as have the president and his advisors' candid admissions about their motivations.

The administration's intended intimidation may be enough to unconstitutionally chill speech by itself. Just last year, the Supreme Court reaffirmed that threatening "a third party 'to achieve the suppression' of disfavored speech violates the First Amendment." National Rifle Association of Am. v. Vullo, 602 U.S. 175, 180-81, 188-91 (2024). Such government intimidation constitutes "informal censorship" that violates the First Amendment. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.6, 67, 70 (1963). And threatening to condition the receipt of federal funds on concessions requiring recipients to forgo unrelated protected activity raises independent First Amendment concerns under the unconstitutional conditions doctrine. See Perry v. Sindermann, 408 U.S. 593, 597 (1972). It's one thing for the government to refuse to fund unlawful discrimination; it's altogether another for the government to leverage private institutions' dependence on federal funds to chill disfavored points of view.

But even if the Trump Administration's letters and threats do not alone violate the 60 targeted institutions' and their students' First Amendment rights, any eventual Title VI enforcement actions against those universities almost certainly would. Where the motive for government action is unconstitutionally impermissible, the government can sustain its action only if it can show that it "would have reached the same decision" even "in the absence" of that improper motive. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). It is implausible that a Trump Administration concerned only with actual discrimination would bring enforcement actions that just happen to single out those institutions protecting or promoting speech the administration opposes, without any announced findings demonstrating actual deliberate indifference to instances of discrimination, violence, or harassment.

Practical Steps Institutions Can Take To Preserve and Enhance First Amendment Defenses

Colleges and universities targeted by the Trump Administration's letters can bolster their First Amendment defenses by taking actions demonstrating that any potential Title VI enforcement would be pretextual. Institutions should:

• Set up formal channels for community members to report discriminatory misconduct, and maintain dedicated staff to review and timely respond to complaints;
• Enforce their codes of conduct prohibiting violence and harassing intimidation at demonstrations;
• Maintain the safety of physical corridors between buildings and public spaces, so that students and community members are guaranteed ingress and egress across campus with equal access to programming;
• Document, update, and publicize these actions on a dedicated webpage accessible to the public; and
• Issue policies making clear that providing a forum for divergent viewpoints and robust debate is a core institutional value and consistently enforce those policies to demonstrate that tolerance for lawful non-violent student protest and controversial research and teaching is an actual expressive choice.

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"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.]" Board of Education v. Barnette, 319 U.S. 624, 642 (1943). The current administration—and indeed many educational institutions and their outside counsel—may disagree with some of the speech expressed at campus demonstrations protesting Israel's self-defense. But such disagreement is not license for the government to threaten Title VI investigations or funding terminations to pressure colleges and universities into filtering out disfavored points of view, courses of study, and research. If institutions take active and deliberate steps to prevent hostile environments, publicize those actions, and demonstrate a value-based commitment to a culture of free speech while condemning antisemitic violence and harassment, the First Amendment should provide a defense against any pretextual enforcement.