Since the start of the war in Gaza last fall, as pro-Palestinian protesters amassed on many college campuses, criticizing Israel and chanting, “From the river to the sea,” college officials have struggled to find the line between what’s protected free speech and what’s discriminatory conduct.
But Catherine Lhamon, assistant secretary for civil rights at the U.S. Education Department, said Thursday during a public interview on campus free speech that there is not necessarily a conflict between the two.
“One of the things that I’m still astonished by is the degree of paralysis on this question,” Lhamon said. “I see so many universities taking the position that they can’t even address it because it’s free speech. And actually, that’s not right.”
“It may be that you can’t discipline the speaker, because the speech is protected. And I support that,” she explained. “But that’s not the end of the inquiry. The inquiry has to also be, are the students who are Jewish, Palestinian, Arab on campus safe?”
Thursday’s event was one of the few times Lhamon has commented extensively about the protests and debates on campus in the past year, though her agency has provided guidance letters to colleges about how they can comply with Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin, including antisemitism and Islamophobia. Other details about the agency’s view have come out through resolution agreements.
The Office for Civil Rights has seen a significant uptick in complaints alleging that colleges haven’t appropriately responded to reports of antisemitic or anti-Arab discrimination on campuses since Oct. 7, opening dozens of investigations and resolving a few.
“It’s a new low,” Lhamon said of the campus climate.
The pressure on institutions to find a balance between free speech and antidiscrimination protocol is unlikely to relent when students head back to campuses this fall, particularly as election tensions build and the war in Gaza likely rages on, several experts who also spoke at the event Thursday said.
“There’s a legal tension: The First Amendment conflicts sometimes with Title VI,” said Timothy Heaphy, who served as general counsel for the University of Virginia in the wake of the 2017 neo-Nazi rally in Charlottesville. “So, simultaneously protecting speech, but also creating an environment in which everyone feels safe, is really, really difficult, and colleges need to navigate this in real time.”
OCR has repeatedly reminded colleges that they have an obligation to respond to any report of alleged discrimination—and warned them not to simply dismiss some actions unilaterally as protected free speech.
Lhamon said that the “baseline” response expected by the department is that institutions directly communicate with students affected by objectionably discriminatory speech and make it clear that they were admitted because they are wanted on campus. Examples she listed include providing students with counseling or educating them on the process of how to file a formal discrimination complaint.
The purpose “isn’t to silence a speaker who has the right to speak,” she said, but “to make sure that all the students in a campus community are fully supported.”
Some Jewish student groups, joined by lawmakers in Congress, have been calling on higher education officials to apply more substantive response tactics for months.
“You have to have the distinction between free speech and then the violence or sort of occupation of campus, because those are two different things,” said Senator Eric Schmitt, a Republican from Missouri. “If you had images of Jewish students, fearing for their lives, locked in a library, that’s totally unacceptable,” he added, referring to an incident at the Cooper Union in New York City.
“College administrators, in many ways, have sort of created this problem, in that only one side of the debate is often heard,” he said, referencing claims that higher education is a bastion of liberal ideals. “When I was in college, I sought out lectures or speeches from speakers that I didn’t agree with. There’s got to be a cultural shift where that’s more acceptable. You can’t have one point of view in the bleachers.”
Recent findings from the Knight Foundation’s 2024 views on campus speech survey, which were discussed during Thursday’s event, show that although not all students agree it is only voices from the right that are being censored, they are generally losing confidence in the security of free speech. Just 43 percent of students surveyed said free speech is soundly protected, a 30-point plunge from 2016.
The survey’s results show that students believe faculty members and administrators on their campuses are creating an environment that prevents people from saying things that others might find offensive and often inadvertently leads to a culture of self-censorship among students. About 60 percent of respondents said the climate on campus prevents some people from saying things they believe because others might find it offensive. And between 25 and 40 percent of survey respondents said they would not express their true beliefs on particular topics such as race, gender, sexuality or religion.
The majority of students—54 percent—still believe a campus should allow them to be exposed to speech they might find offensive. But the minority who want to be shielded from objectionable language is growing, from 18 percent in 2017 to 27 percent in 2024.
This relatively new phenomenon of internal pressure for universities to shut down speech is something both Ashley Zohn, vice president of the Knight Foundation, and Keith Whittington, founding chair of the Yale Law School’s Academic Freedom Alliance, said people need to pay attention to and address head-on.
“Traditionally, universities were places that were pressing for more speech to occur on campus,” Whittington said. “But that’s not true anymore.”
Combined with external political pressure from lawmakers as they push draconian restrictions on DEI initiatives and related curricula, the pressures on speech create a real challenge. The key, he noted, will be trying to get ahead of the game.
“Universities will be well advised to try and get out in front of this a little more, trying to explain more to the public and politicians what universities stand for and why we do what we do,” Whittington said. “There are reasons why things, from the outside, may seem crazy that are happening on campuses. But there’s good reason, given how the larger campus is operating, why we’re doing it.”