0:01

Okay, so it's Thursday, September 5th at 10.36

0:03

a.m. What are we going to be talking

0:05

about today? All right, Roman.

0:07

Here is a statement from the president. The

0:10

United States has the greatest system

0:12

of higher education ever developed by

0:14

man. But in the past

0:16

academic year, the integrity of this system

0:18

involving more than 2,500 colleges and universities

0:20

and nearly eight

0:24

million students has been threatened. While

0:27

the overwhelming majority of those who

0:29

live and work in the academic

0:31

community are dedicated to nonviolence, there

0:34

have nevertheless been over 100 campuses

0:36

on which violent acts have recently

0:39

occurred. This situation is

0:41

a matter of vital concern to all

0:43

Americans. The president

0:45

was President Nixon, and he made that

0:47

statement on June 13th, 1970. In April

0:49

of 1970, Nixon had announced that the

0:54

United States would invade Cambodia. And

0:57

that invasion signaled a new expansion of

1:00

the ongoing Vietnam War. And

1:03

in response, college students around

1:05

the country renewed their protests

1:07

against the war. One anti-war

1:09

protest took place on the campus

1:11

of Kent State Ohio on May

1:14

1st, 1970. The protest

1:16

was peaceful at first, but when violent

1:18

confrontations broke out between protesters and the

1:20

police, the governor of Ohio called

1:22

in the state National Guard. About

1:25

1,000 guardsmen occupied the Kent

1:27

State campus. Tensions

1:30

increased, and on May 4th, 1970,

1:32

a large crowd gathered on the

1:34

Kent State Commons. When

1:37

the protesters ignored in order to disperse,

1:39

some of the guardsmen fired their rifles and pistols.

1:43

Some fired directly at the crowd. Four

1:46

students died, and nine were wounded. After

1:50

the Kent State shootings, Nixon

1:52

convened the President's Commission on

1:54

Campus Unrest. The

1:56

commission issued a 537-page report later that same

1:58

year. Among

2:01

its conclusions, the Commission noted that,

2:04

"...descent and peaceful protests are a

2:06

valued part of this nation's way

2:08

of governing itself. We

2:11

cannot emphasize too strongly that dissent

2:13

and orderly protest on campus are

2:16

permissible and desirable. American

2:19

students are American citizens, and

2:21

a campus, frequently even the campus

2:24

of a private university, is essentially a

2:26

public place." But

2:28

the Commission also noted that students

2:30

must face the fact that giving

2:32

moral support to those who are

2:34

planning violent action is morally

2:36

despicable. In

2:39

the spring of 2024, college students

2:41

at many campuses are also protesting

2:43

against war. Students are

2:45

arguing that they have rights to speak. And

2:48

colleges are again struggling with how to address

2:50

those protests. What's

2:52

different today, though, is the presence of

2:54

other students who don't share the protesters'

2:57

views, and argue that their

2:59

own rights are being violated. The

3:01

new school year has started. How should

3:04

colleges respond to student protests? Whose

3:06

rights matter? And what does the

3:08

Constitution have to say about it? Time to find out. Let's

3:11

do it. This

3:31

is what Roman Mars can learn about

3:34

Con Law, an ongoing series of indeterminate

3:36

length and sporadic release, where we look

3:38

at the recent protests on college campuses

3:40

and whose free speech matters more and

3:42

use them to examine our Constitution like

3:44

we never have before. Our music is

3:47

from Doomtree Records, our professor and neighbor

3:49

is Elizabeth Jo, and I'm your fellow

3:51

student and host, Roman Mars.

4:04

So, Roman, as students return to classes

4:06

this month, college campuses are preparing themselves

4:08

for new rounds of protests over the

4:10

Israel-Hamas conflict. So why don't we briefly

4:13

summarize what's happened? Okay, let's do it.

4:15

On October 7, 2023, the

4:18

militant Islamist group Hamas led a

4:20

violent surprise attack from the Gaza

4:22

Strip against Israel. More

4:25

than 1,200 people were killed during the

4:27

attack, including some American citizens, and

4:30

Hamas also abducted more than 250 hostages. Now

4:34

in response, Israel formally declared war

4:37

on Hamas and began a

4:39

military campaign in Gaza. Israel

4:41

hasn't just relied on military operations,

4:44

it has drastically limited the supply

4:46

of electricity, food, water, and fuel

4:48

to Gaza. And

4:50

we don't have precise numbers, but

4:52

the Hamas-controlled health ministry claims that

4:54

more than 40,000 Palestinians in Gaza

4:56

have died in the conflict so

4:59

far. Now few people

5:01

dispute that there is enormous suffering in

5:03

the civilian population of Gaza, and

5:06

there doesn't seem to be any foreseeable end to the

5:08

war right now. Now

5:10

last spring, many colleges saw students

5:12

respond to the war in Gaza

5:14

with protests, with the usual signs

5:16

and chants, and some

5:18

protesters set up encampments on college grounds.

5:21

And a lot of people probably are

5:23

familiar with the scenes they saw at

5:26

Columbia University. Did you see them? Yeah,

5:28

absolutely. Yeah, pro-Palestinian students slept in tents

5:30

on campus grounds for several nights, and

5:33

the atmosphere became so tense that the

5:35

university put the campus on lockdown. They

5:37

had remote classes, no outsiders were allowed

5:39

on campus. And then

5:41

when the students occupied a campus building,

5:43

the administration called in the New York

5:45

Police Department. Students

5:47

of New York City police officers, clad

5:50

in riot gear, arrested the students occupying

5:52

the campus building on the night of

5:54

April 30th. And then

5:56

the encampment was cleared from the Columbia campus

5:58

the very next day. That

6:00

scene was repeated at several other

6:03

colleges around the country, including places

6:05

like UCLA, the University of Michigan,

6:07

and the University of Arizona. So

6:10

in this situation, what kind of rights do students

6:12

have when it comes to, you know, their free

6:14

speech rights and protest rights? So

6:16

it depends on where they are. Public universities,

6:18

because they are public, are regulated by

6:21

the First Amendment. Public

6:23

universities have to follow what the Supreme

6:25

Court has said regarding the First Amendment's

6:27

guarantees of free speech. And

6:30

the general idea is that you can't be

6:32

punished even for very controversial or even outrageous

6:34

things that are said. But

6:37

the First Amendment does not apply to private

6:39

universities. Private colleges and

6:41

universities are not bound by the First Amendment,

6:44

but they usually have policies that respect free

6:46

speech for their students because they just think

6:48

it's an important value for the community, but

6:50

it's certainly not required. And

6:53

even when the First Amendment does apply to a

6:55

public university, that doesn't mean that every kind of

6:57

speech is protected. Threats

7:00

or inciting imminent violence are exceptions here.

7:03

And the First Amendment doesn't protect

7:05

students who engage in acts like

7:07

vandalizing property or occupying campus buildings

7:09

or creating an encampment. These

7:11

can be considered criminal offenses and colleges can

7:14

call in the police to arrest students who

7:16

are breaking these laws. And

7:18

even when it comes to speech, colleges

7:21

can impose what are called time, place,

7:23

and manner restrictions, just as long as

7:25

they aren't regulating one viewpoint more heavily

7:27

than another. But

7:29

Roman, there's something different about these 2024 protests

7:32

against the war in Gaza. And

7:35

that's the nature of the protest itself,

7:37

right? Some students

7:39

are calling for an immediate ceasefire and

7:41

others are calling for more humanitarian aid

7:44

for the people of Gaza. These

7:46

things are not hard to understand. But

7:48

remember that the current conflict began on

7:51

October 7th with Hamas's attack from the

7:53

Gaza Strip. And

7:55

this is all part of a complicated set of tensions

7:57

in the Middle East that we don't have time to

7:59

get into here. here today. But

8:01

some Hamas leaders have said that

8:03

the goal, eventual goal, is to

8:06

destroy Israel. And for many

8:08

American Jews, the existence of a

8:10

Jewish state is key to their own identity.

8:13

Now if you're a Jewish student on

8:15

a college campus, you might hear the

8:18

words, ceasefire now, or free Palestine. And

8:20

you might agree or disagree about how

8:22

and whether the war in Gaza should

8:24

end, and that would be a political

8:27

disagreement. But let's say

8:29

you're a Jewish student, and you hear someone say,

8:32

we support Hamas, or Zionists

8:35

don't deserve to live, or no Zionists

8:38

allowed, as some protesters have said.

8:41

Now that starts to feel very much

8:43

like the protesters might be against you

8:45

for being Jewish. And

8:48

this speech sounds to some Jewish

8:50

students and faculty as anti-Semitic. And

8:54

some Jewish students and faculty have said that

8:56

in these protests, when they hear words like

8:58

that, they feel personally

9:01

threatened and intimidated by them.

9:04

That these protests aren't just protests to end the war,

9:06

but they sound like anti-Semitic

9:08

threats. Now Roman, you and

9:10

I have talked about speech rights before and

9:12

how there isn't a hate speech exception to

9:14

the First Amendment. We tolerate under the First

9:16

Amendment a lot of very extreme statements. And

9:19

a private university like Columbia is not restricted

9:22

by the First Amendment. But

9:24

what Columbia and nearly every educational

9:26

institution in the United States is

9:29

bound by, including K through 12

9:31

education, is a federal

9:33

statute called Title VI. Oh,

9:37

I am not familiar with Title VI. What does Title VI

9:39

say? Title VI is

9:41

a shorthand for Title VI of the

9:43

Civil Rights Act of 1964. That

9:46

is the landmark Federal Civil Rights Act

9:48

signed into law by President Johnson. It's

9:51

the major civil rights legislation that

9:53

applies across the country. Title

9:56

VI is a federal anti-discrimination

9:58

law that bans discrimination. in

10:00

public accommodations and in federally

10:02

funded programs. Now,

10:05

as far as Title Civil Rights Acts go, a lot

10:07

of people might be familiar with a different one, Title

10:09

IX. Title IX is a

10:11

1972 update to the Civil Rights Act.

10:13

Title IX is the reason why high

10:15

schools are supposed to support girls with

10:17

similar opportunities as boys when they play

10:20

organized sports and why there was a

10:22

huge increase in women's and girls' sports

10:24

participation after 1972. But

10:26

that's Title IX. This is a different title, back to Title

10:28

VI. So Roman, maybe you could

10:30

read it. Oh, yeah, absolutely. I love this part.

10:33

No person in the United States shall,

10:36

on the ground of race, color, or

10:38

national origin, be excluded from participation in,

10:41

be denied the benefits of, or

10:43

be subjected to discrimination under any

10:46

program or activity receiving federal financial

10:48

assistance. So how

10:50

does that thing I just read

10:52

apply to protests? Well,

10:54

if you read the literal text, the answer

10:57

appears to be nothing or not very much,

11:00

right? There's nothing in the federal law that

11:02

addresses antisemitism or religious discrimination

11:05

in general. Instead, as

11:07

you said, Title VI says that if

11:09

you receive federal funds, you can't discriminate

11:11

on the basis of race, color, or

11:14

national origin. What's the type

11:16

of institution that receives federal funds? Colleges

11:18

and universities, and also K through 12

11:20

schools. And this

11:22

is a lot of money. Colleges receive

11:25

hundreds of millions of dollars in federal

11:27

funds. You can take one example of

11:29

Yale University. Yale receives about $600 million

11:31

a year in federal funds. It's

11:35

a lot of money. Whoa, my goodness, okay.

11:38

So under the Supreme Court's

11:40

interpretation of Congress's spending powers under

11:42

the Constitution, Congress is

11:44

allowed to attach conditions or strings

11:46

to the federal dollars that it

11:48

gives to colleges and universities. And

11:51

here are the strings in Title VI. So

11:55

you don't discriminate, right? But

11:57

there is the problem that you've just observed.

11:59

matter in the context of the student

12:01

protests against the war in Gaza. Well,

12:04

that has to do with the Office

12:06

for Civil Rights. And the Office for

12:09

Civil Rights is a federal agency within

12:11

the Department of Education. And

12:13

the Office for Civil Rights is

12:15

responsible for enforcing Title VI in

12:17

schools that receive federal funds, including

12:20

the vast majority of colleges and

12:22

universities. And enforcing Title

12:24

VI also means that the Office

12:26

of Civil Rights is allowed to

12:29

interpret Title VI. OK.

12:31

So how do they interpret it? Well, until

12:34

2004, it wasn't really obvious

12:37

that the kind of problem you see with the

12:39

student protests of this past year have anything to

12:41

do with Title VI. But in

12:43

2004, the Office of Civil Rights, under

12:46

the Bush administration, issued a new

12:48

interpretation of Title VI. And

12:51

under the new interpretation, Title VI's

12:53

protections also apply to students who

12:56

are discriminated based

12:58

on what the office calls shared

13:00

ancestry. And that includes

13:02

being part of a group that is

13:05

identified for its racial and

13:07

religious characteristics. The

13:09

2004 interpretation specified that

13:12

Title VI could now apply to

13:14

students who are Muslim, Sikh,

13:16

or Jewish, and say,

13:18

well, hey, I'm being discriminated against at my

13:21

school. And so specifically

13:23

for Jewish students, this means that

13:25

the Office of Civil Rights now

13:27

considers Judaism like a race or

13:29

a nationality, not just a religion.

13:32

And it's that 2004 interpretation, which

13:36

is applying Title VI's protections to

13:38

students of religious faiths who

13:41

are targeted for what the Civil

13:43

Rights Office calls perceived shared ancestry.

13:46

That new interpretation has been

13:49

adopted by every presidential administration

13:51

since, including the Biden administration.

13:54

So how does this expanded interpretation of

13:56

Title VI to include shared ancestry and

13:59

Jewish students, how does this affect the

14:01

protest? Well, because of

14:03

the enforcement powers possessed by the Office of

14:05

Civil Rights. So Congress

14:07

has given the Office of Civil

14:10

Rights broad powers to investigate complaints

14:12

of potential Title VI violations. If

14:15

there's a violation of Title VI, the

14:17

office is supposed to first find some

14:19

cooperative resolution with the school that's being

14:22

investigated. So that might mean persuading

14:24

a college to change its policies or how

14:26

it treats students or maybe doing something different

14:28

or to stop doing something I had been

14:30

doing before. And of course,

14:32

we're talking about federal funds. And

14:35

as a very last resort, the Department

14:37

of Education could seek to cut off

14:39

federal funding for the college or university.

14:41

And that could mean the potential loss of

14:44

hundreds of millions of dollars. And

14:46

practically, that's probably unlikely. But the threat

14:48

of it does give a college the

14:51

incentive to change its behavior if it's

14:53

been found in violation of Title VI.

14:56

And since October 7th, the Department

14:59

of Education's Office of Civil Rights

15:01

has opened dozens of investigations into

15:04

claims of anti-Semitism at colleges and

15:06

K through 12 schools under

15:09

this relatively recent interpretation.

15:12

So how does the language of

15:14

the protesters, you know, when

15:16

they're sort of taken in and perceived by Jewish

15:18

students, how does that violate Title VI? That

15:21

is a much, much more difficult question. So

15:25

a Title VI violation can happen

15:27

with a school either, one, when

15:29

the school treats a student differently

15:31

because of their race, color, or

15:33

national origin, or two, because

15:35

the school creates what courts have

15:37

called a hostile environment. So

15:40

a hostile environment means that the school might

15:42

know that a student is being treated differently

15:44

because of their race, but the school does

15:46

nothing about it. And so it's that kind

15:49

of indifference that can violate federal law. And

15:52

the Office of Civil Rights has

15:54

recently released some examples of how

15:56

this might work. So imagine a

15:58

college student whose dorm room is

16:00

defaced with... swastikas or white supremacist

16:02

slogans about Jewish people, or

16:04

a Muslim student who is targeted for wearing

16:06

a hijab. And if the

16:08

school is told about this and does nothing, the

16:11

Office of Civil Rights has said that

16:13

can be the basis of a hostile

16:15

environment investigation for a violation of Title

16:18

VI based on this idea of shared

16:20

ancestry. Yeah. So if any

16:22

pro-Palestinian protester acts in ways that

16:24

are similar, that would be

16:26

a potential violation of federal law for the schools.

16:29

But it's not so easy, right?

16:31

Because what about some other statements? What

16:34

if a campus protester puts up a sign that

16:36

says, Israel is a racist

16:38

state that must be dismantled? Or

16:41

if a professor says that we must

16:43

oppose Israel at all costs? Are

16:46

those statements violations of federal

16:49

anti-discrimination law? Because

16:51

if you're a Jewish student hearing these words,

16:53

and you consider Israel as part of what

16:55

it means to be Jewish, then

16:57

it could feel threatening. And

17:00

if you're asked to disavow Israel just to

17:02

cross campus and get to your classes, it

17:05

can feel like maybe you have to deny your

17:07

own identity just to be a student on campus.

17:11

But even if these kinds

17:13

of statements might violate Title VI, aren't

17:16

these also the kinds of statements that are

17:18

protected by the First Amendment? Yeah.

17:21

So thus far, there haven't been any

17:23

major court decisions that answer these questions,

17:26

but there may be soon. Because

17:28

ever since October 7th, a

17:30

number of lawsuits have been filed that

17:32

ask this very question, whether

17:34

highly critical statements against Israel

17:36

can violate Title VI. Because

17:39

Title VI has been interpreted not just to

17:41

give powers to the Office of Civil Rights,

17:43

but it allows private individuals to bring lawsuits

17:45

too. So for

17:48

example, there is now a lawsuit by

17:50

a group of Jewish students who have

17:52

sued the University of California Berkeley Law

17:54

School. What's the story with that lawsuit? Well,

17:57

some student groups at the law school had

17:59

established a... They said,

18:01

look, we're not going to invite any

18:03

speakers who hold views in support of

18:05

Zionism. So the

18:07

UC Berkeley lawsuit argues that

18:09

this student policy violates Title

18:11

VI because it's anti-Semitic

18:15

and the law school tolerates it. It allows the student groups

18:17

to do this. Now,

18:19

the law school, on the other hand, has argued

18:22

that, well, we can't punish student groups for

18:24

their policy because that would violate their own First

18:26

Amendment rights. And

18:29

in June of this year, a group

18:31

of Jewish students at UCLA filed a

18:33

federal lawsuit over pro-Palestinian protests

18:35

held at UCLA's campus in April. So

18:37

what happened there? Well,

18:40

there, the protesters established

18:42

an encampment on part of the campus called Roy's

18:44

Quad. And according to the

18:47

lawsuit, protesters established checkpoints at the campus and

18:49

required people who wanted to cross the Quad

18:51

to go to class or go to the

18:53

library. They had to denounce the state of

18:55

Israel. And the

18:57

plaintiffs here, these Jewish students, argued,

18:59

well, they had a religious obligation

19:01

to support Israel. And the fact

19:03

that the university did nothing to stop these

19:05

checkpoints violated their rights. And

19:08

on August 13th, a federal district court

19:10

judge granted the plaintiffs request for a

19:12

preliminary injunction or to order the university

19:14

to stop doing what they were doing.

19:18

And the judge ordered UCLA to ensure equal

19:20

access to Jewish students when they wanted to

19:22

be on campus and go to class. Now,

19:25

this lawsuit claimed that UCLA violated the

19:27

students' First Amendment rights, including their free

19:30

exercise of religion rights, as well as

19:32

their rights under Title VI. On

19:35

the preliminary injunction motion, the judge found

19:37

that the students were likely to win

19:39

on their First Amendment free exercise of

19:41

religion claim. So he

19:43

didn't resolve the Title VI claim. And

19:46

on August 23rd, UCLA decided not

19:48

to appeal the judge's decision. So that

19:51

was a victory for the

19:53

students at UCLA, who had argued that

19:55

they'd basically been denied their ability to

19:57

freely access libraries and classes on campus.

20:00

because they had to go through these checkpoints. That's

20:02

right. At the very least, this means

20:04

that other lawsuits are also going to

20:06

be coming to test out whether these

20:08

kinds of actions that we're seeing and

20:11

have seen violated federal anti-discrimination law or

20:13

whether they're protected first amendment speech. I

20:16

mean, it takes a lot of nerve to sue a

20:18

law school, right? Yeah.

20:21

I mean, but they're also law students, so

20:23

they're, you know, like

20:26

they're litigators in training, right? It does

20:28

take a lot of nerve, but it

20:30

is a difficult question, right? Because these

20:33

are not easy things to resolve. I mean,

20:35

clearly some statements that have been made during

20:37

these protests are, I think

20:39

most people would agree are clearly

20:41

anti-Semitic, right? But there are a lot

20:44

of statements that are

20:46

kind of ambiguous. You know, they're

20:48

perceived by some as being anti-Semitic,

20:50

but perhaps we shouldn't think of

20:52

them as anything other than protected speech. And

20:55

it's not even that there's a unified

20:57

view among Jewish students and faculty on

20:59

this very issue. You know, there are

21:01

definitely, right? There are Jewish students and

21:03

faculty in support of these, you know,

21:06

and the Warren Gaza protests.

21:08

And so it's a very complicated picture, but

21:11

it's very different than the

21:13

kinds of situations we've seen before, where

21:15

we see within the student body, such

21:17

a deep division over an issue. Yeah.

21:20

Yeah. So, uh, you mentioned this as a new,

21:22

you know, fall term is starting. What,

21:24

what's it looking like things are going

21:26

to happen now? Well, it

21:28

appears that there are already some protests that have

21:30

begun, but there is one subject that we

21:32

should address because it's now beginning to emerge

21:36

with the new school year. And that's, what

21:38

about the colleges and universities? They have speech

21:40

rights too, right? Yeah.

21:43

So what about the colleges and universities?

21:47

Speech rights too, right? Yeah. So

21:49

one thing we might start to

21:51

see is a change in university

21:53

behavior, unrelated to the lawsuits we've

21:55

just talked about. And

21:57

that's the idea of institutional. So

22:00

describe institutional neutrality. Well,

22:04

after October 7th, many colleges and universities

22:06

offered official statements

22:08

of support for the victims of the October 7th attack.

22:11

And many colleges offered official statements

22:13

in support of Ukraine over the

22:15

Russian invasion. Many

22:19

colleges also condemned the attack on the

22:21

Capitol in 2021. And

22:24

many of them also made official statements regarding George

22:28

Floyd's death when he was killed by a police officer in

22:30

2020. But

22:32

it's been the October 7th statements that

22:34

have put universities maybe in the most

22:36

uncomfortable position because they

22:38

received a response from students and

22:41

some faculty that were not in

22:44

support of the statements that they'd made. They wanted

22:46

them to reverse those statements. And

22:48

so after the campus protests of last

22:50

spring, where you had hundreds of arrests

22:53

of students and some faculty, several colleges,

22:55

including Harvard, Johns Hopkins, and the University

22:57

of Texas, have said that

22:59

they will adopt what they call institutional

23:01

neutrality. And you asked about it. It

23:04

really means that the university is officially

23:06

saying, we will stay out of political

23:08

and social issues. And

23:10

it's a policy position most commonly associated

23:12

with the University of Chicago, because it

23:14

comes from a document called the Kelvin

23:17

Report from 1967. The

23:19

University of Chicago had studied this through a

23:21

committee saying, what should we do in the

23:23

wake of these violent protests of the sixties?

23:26

And Chicago ever since has said, we stay

23:28

out of these things. We don't say one

23:30

way or the other in terms

23:32

of our political support. So if

23:35

henceforth all these institutions were

23:37

neutral, how

23:39

would this affect the protests going forward? Well,

23:42

it does affect it because of

23:44

what the students protesting for Palestine

23:46

have been asking for. First

23:48

of all, they've been asking for campuses to

23:50

condemn Israel. So if a college

23:52

is institutionally neutral, they'll say we're not going to

23:54

say one way or the other. They've

23:57

also been asking campuses to divest

23:59

their. financial holdings from companies that

24:01

have anything to do with Israel.

24:04

And that too can be related to

24:06

institutional neutrality. So if a college

24:08

says from now on, we are institutionally

24:10

neutral, then they could respond to these

24:12

demands by saying, look, politics do not

24:14

dictate our financial decisions. We're not going

24:16

to change based on what students are

24:19

asking for. I mean, through

24:21

all of this, how did the University of Chicago

24:23

fair? Like, if they adhere to

24:25

the Calvin report since the late 1960s,

24:28

were protests substantially different

24:30

there? Well, they didn't

24:32

reach any level of violence. They certainly restricted

24:35

the way in which students could protest. And I

24:38

think more than that, for a long time now,

24:41

the University of Chicago has promoted a certain

24:43

culture that you can have respectful protests. You're

24:45

allowed to protest in these places and in

24:47

these ways, but that's it. If you go

24:50

beyond that, we're going to crack down on

24:52

you. And I think

24:54

other colleges have promoted freer interpretations

24:56

of how and whether and when

24:59

to protest. And some

25:01

of that of course, is backfired because it's

25:03

led to calling the police in and sometimes

25:06

some violence and a lot of tension

25:08

on campus. So what you

25:10

see with these student protests of 2024 is colleges

25:12

having to take a new look at

25:18

what free speech really does mean in practice

25:20

for them and how much they're willing to

25:22

tolerate. And

25:24

keep in mind that some of

25:26

the faculty themselves were part of

25:28

another generation of protests. So there's

25:30

some irony here too. Yeah. I

25:33

mean, it just goes back to this

25:35

whole idea of like, when there's conflicting

25:38

ideology, free speech is extremely complicated.

25:40

So is neutrality. I mean, like

25:43

neutrality, the idea of neutrality

25:46

could mean, oh yeah, I'm not on any

25:48

one side. And then another interpretation of neutrality

25:50

is the Swiss like laundering Nazi gold. You

25:52

know what I mean? It's just like both

25:54

of those things are kind of their own

25:57

mess. Yeah. And of

25:59

course, neutrality. is a statement. Yeah, exactly.

26:02

So if you look at the

26:04

University of Chicago statement for January

26:06

6th, it only says

26:08

we understand there was a terrible incident

26:10

and we have counselors and people to

26:13

help for students who are upset. That's

26:16

very, very neutral to say that

26:18

there's been a thing that happened,

26:20

whereas other campuses were much more

26:22

willing to say, we condemn this

26:24

attack on democracy. Now,

26:26

it all works when most of

26:28

the campuses behind that statement. It

26:31

doesn't work when there's incredible division.

26:33

Right, right. And so is

26:35

there any sense of how this will play out?

26:37

I mean, is it just like a matter of

26:40

there really being no solution if the temperature

26:43

is hot enough? You know what I'm saying? Is

26:46

the only solution just like things

26:48

not being quite so volatile? Well,

26:51

I mean, I think it's early

26:53

yet in the school year to see

26:55

whether these protests will be of the

26:57

same size and intensity as last spring.

27:00

I do think there will be

27:02

continuing conflicts in the courts now

27:05

that there have been investigations and

27:07

there have been some successes in the courts on

27:10

the part of Jewish students who

27:12

say, look, this is a Title VI

27:15

violation. And I think it will be

27:17

really interesting to see how courts grapple with is this

27:19

a protected speech issue

27:21

or is this a federal

27:23

anti-discrimination issue? Because there

27:25

does have to be some kind of decision

27:28

and it's not obvious which

27:30

way to go for some of the most

27:32

difficult questions. Yeah, it doesn't seem obvious to

27:34

me at all. It seems completely case by

27:36

case with every utterance, like every message. It

27:39

seems completely different. That's right. And

27:41

I think the problem then, of course, as some

27:43

have pointed out, is that if you have the

27:45

potential for the Office of Civil Rights to investigate

27:47

you as a college and you just don't want

27:49

to get involved in too many lawsuits, then

27:52

you pull back and you actually

27:54

curb student speech. You say, you

27:56

know, you can't say stuff like this because we don't want to get sued in

27:58

court. It's

28:02

just more and more complicated. I don't even

28:04

know how a decision could be ever made.

28:06

If it goes up to the Supreme Court,

28:09

what in the world could be the thing

28:11

that said that would help? I

28:13

don't, especially this court, but any court, I don't even

28:15

know how you would decide except

28:17

for an extreme fine detail

28:19

case by case basis with

28:21

all this stuff. That's

28:23

right. I mean, it would be case by case.

28:25

It would have to go up to the Supreme

28:28

Court. Don't forget that because this is about an

28:30

interpretation of the Civil Rights Act,

28:32

Congress could always step in and say, oh

28:34

no, we didn't mean that. We

28:36

redefined what it means to violate Title

28:39

VI in this different way. Or they

28:41

could say, we do mean this. We do

28:43

want to include these kinds of students and

28:45

we'll provide instances in which there

28:47

are violations of federal

28:49

law. But that too takes

28:52

time. Roman, one

28:54

thing that this does make clear, this

28:56

issue, is that it's

28:58

a clash of so many things that

29:00

the Supreme Court tends to be really

29:02

interested in these days. And

29:04

that is protecting religious rights, protecting

29:08

really, really robust interpretations of the First

29:10

Amendment. And we do live in a

29:12

pretty strong individual free

29:15

speech culture. And

29:17

then also this problem, I suppose,

29:19

for the Supreme Court of how

29:21

far can agencies go in doing what

29:24

they want, interpreting federal law with the

29:26

power that Congress gives them? So

29:29

this speech and protest over the war

29:31

in Gaza is sort of a perfect

29:33

storm of a problem. Yeah, it

29:35

really is. And it's really going

29:38

to come down to, honestly, I could just like, my

29:41

cynical nature is like, yeah,

29:43

sure, they seem to support a robust

29:46

interpretation of free speech and

29:49

unfettered and individualistic and stuff. But

29:52

when it comes to this, it just depends on

29:54

whose side you're on in terms of who

29:56

you think is adhering

29:59

to free speech. rules and who isn't

30:01

because there's free speech involved on all

30:03

sides. The university, the

30:06

protesters, the people. Religious freedom. Yeah, it's

30:08

just like it's so in the end,

30:10

like I feel like their biases will

30:12

just be revealed

30:15

when they decide or if

30:17

they decide on these types of things because there's

30:19

nothing absolute about who

30:22

is the standard bearer of free speech

30:24

in this whole scenario. And

30:27

that's why we need a Supreme Court whose

30:29

neutrality we believe in. That's

30:31

right. I agree with that. Thank

30:34

you, Elizabeth. Thanks, Roman. This

30:39

show is produced by Elizabeth Jo, Isabel Angel,

30:41

and me, Roman Mars. It's mixed by Hizik

30:43

Ben Ahmad Farid. Our executive producer is Kathy

30:45

Tu. You can find us online at learnconlaw.com.

30:48

All the music and what Roman Mars can

30:50

learn about con law provided by Doomtree Records,

30:52

the Midwest Hip Hop Collective. You can find

30:54

out more about Doomtree Records, get merch, and

30:57

learn about who's on tour at doomtree.net. We

31:00

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31:24

for watching.