Podcast Summary: What Trump Can Teach Us About Con Law

Episode: "Whose Speech, Whose Campus"

Host: Roman Mars
Guest: Professor Elizabeth Joh
Date: September 10, 2024

Overview

This episode explores the complex intersection of free speech, student protest, and anti-discrimination law on college campuses—especially in the context of recent pro-Palestinian protests related to the Israel-Hamas war. Professor Elizabeth Joh and Roman Mars discuss how colleges should respond to student protests, whose rights hold sway when those rights collide, and what the Constitution and federal statutes say about it all. Drawing historical parallels from the 1970 Kent State shootings to recent events at places like Columbia and UCLA, they break down evolving legal frameworks, including the First Amendment, Title VI, and the doctrine of "institutional neutrality."

Key Discussion Points & Insights

1. Historical Context: Protest, Speech, and State Response

• Kent State & Campus Violence (1970) [00:36–03:41]

  • Elizabeth Joh recounts President Nixon's reaction to Vietnam War protests, especially the Kent State killings, and the resulting President's Commission on Campus Unrest.
  • The Commission emphasized, “dissent and orderly protest on campus are permissible and desirable…a campus…is essentially a public place.” However, it also condemned supporting violent action.

• Contemporary Protests [05:04–07:10]

  • Joh briefly recounts the October 7, 2023, Hamas attack and Israel’s subsequent military actions, leading to widespread student protests and encampments (notably at Columbia University and others).

2. Free Speech on Campus: Public vs. Private Universities [07:10–10:19]

• First Amendment Protections

  • Public universities are bound by the First Amendment: they cannot punish students for even outrageous speech (with exceptions for “threats or inciting imminent violence”).
  • Private universities are not legally required to protect free speech, but most do as a value.
  • Actions like vandalism, occupying buildings, or erecting encampments are not protected speech and can lead to police involvement.

• Unique Challenge in 2024

  • Current protests intersect with issues of identity: some Jewish students feel pro-Palestinian rhetoric crosses into anti-Semitism and personal threat, making speech issues especially fraught.

    “Some Jewish students and faculty have said that in these protests, when they hear words like that, they feel personally threatened and intimidated by them. That these protests aren't just protests to end the war, but they sound like anti-Semitic threats.”
    — Elizabeth Joh [09:54]

3. Title VI: Anti-Discrimination Law Enters the Campus Protest Debate [10:19–14:54]

• Title VI of the Civil Rights Act (1964) [10:36–11:54]

  • Prohibits discrimination “on the ground of race, color, or national origin” in federally funded programs (i.e., nearly all colleges/universities).
  • Roman reads the statute text aloud.

• Evolving Interpretation: Inclusion of “Shared Ancestry” [13:33–14:54]

  • Since 2004, the Office for Civil Rights (OCR) has extended Title VI to protect against discrimination based on “shared ancestry,” including Judaism, Islam, Sikhism.

  • OCR now considers Judaism not just a religion but also an identity protected as race/national origin for these purposes.

  • All administrations since Bush (including Biden) have adopted this interpretation.

    “For Jewish students, this means that the Office of Civil Rights now considers Judaism like a race or a nationality, not just a religion… That new interpretation has been adopted by every presidential administration since, including the Biden administration.”
    — Elizabeth Joh [14:22]

4. Application & Enforcement of Title VI: The Hostile Environment Standard [15:02–18:20]

• OCR Enforcement Powers [15:02–16:12]

  • OCR investigates complaints of Title VI violations; schools found in violation could theoretically lose all federal funding.
  • Dozens of antisemitism investigations have been opened at schools since October 7th, 2023.

• What Constitutes a Violation? [16:21–18:20]

  • Violations include both active discrimination and failure to address a “hostile environment.”

  • Obvious examples: swastika graffiti, anti-Muslim acts.

  • Ambiguous cases: signs saying “Israel is a racist state,” or requiring denouncing Israel to access campus—courts haven’t yet ruled on these situations.

    “A hostile environment means that the school might know that a student is being treated differently because of their race, but the school does nothing about it…”
    — Elizabeth Joh [16:34]

5. Recent Lawsuits: How Title VI Is Being Tested [18:21–21:15]

• UC Berkeley Law Suit [18:55–19:38]

  • Student groups refused to invite speakers supporting Zionism; lawsuit alleges this is antisemitic discrimination under Title VI.
  • Law school’s defense: punishing groups would violate their First Amendment rights.

• UCLA Lawsuit [19:40–21:15]

  • April 2024: Protests established checkpoints on Royce Quad; students had to denounce Israel to cross.
  • Jewish students alleged this violated both their rights to free movement and their free exercise of religion.
  • Judge issued a preliminary injunction guaranteeing equal access; UCLA did not appeal.

6. Ambiguity and Clashing Rights on Campus

• Ambiguity and Intra-Group Division [21:15–22:20]

  • Not all Jewish students/faculty agree on what is antisemitic or where the line lies between criticism of Israel and threats to Jewish identity.

    “There are Jewish students and faculty in support of these end the war in Gaza protests. It's a very complicated picture...”
    — Elizabeth Joh [21:56]

7. Institutional Neutrality: University Speech Rights [23:04–26:54]

• What Is Institutional Neutrality? [23:31–25:50]

  • Some universities (e.g., Harvard, Johns Hopkins, Texas) have decided to stay out of political/social issues (“institutional neutrality”), modeled on the University of Chicago’s 1967 Calvin Report.

  • Neutrality policies are now being invoked in response to demands for official statements or divestment.

    “...the university is officially saying, we will stay out of political and social issues.”
    — Elizabeth Joh [24:01]

• Effect on Protest & Campus Culture [25:50–26:54]

  • Institutional neutrality can limit student/faculty attempts to have the university take sides, shaping both protest behavior and university response.

8. Is Neutrality Possible? Limits of Policy in Resolving Speech Conflicts [27:02–31:57]

• The Meaning and Limits of Neutrality [27:02–28:03]

  • Neutrality itself is a statement; true consensus is rare and division complicates implementation.

  • Historical example: University of Chicago’s Jan. 6, 2021, statement was extremely neutral compared to others.

    “Of course, neutrality is a statement.”
    — Elizabeth Joh [27:28]

• No Easy Solutions: Future Court Battles [28:21–31:57]

  • The balance between protected speech and anti-discrimination is unresolved and will likely be decided case by case—possibly by the Supreme Court or Congress.

  • Real risk: fear of lawsuits leads colleges to stifle speech more broadly.

    “...if you have the potential for the Office of Civil Rights to investigate you as a college and you just don't want to get involved in too many lawsuits, then you pull back and you actually curb student speech.”
    — Elizabeth Joh [29:14]

• The Supreme Court as Final Arbiter

  • Roman notes decisions may ultimately reveal justices’ biases.

  • The importance of the Court’s perceived neutrality is underscored.

    “And that's why we need a Supreme Court whose neutrality we believe in.”
    — Elizabeth Joh [31:57]

Notable Quotes & Moments

• On the changed protests climate:

  “There's something different about these 2024 protests against the war in Gaza. That's the nature of the protest itself... Some Hamas leaders have said that the goal, eventual goal, is to destroy Israel. And for many American Jews, the existence of a Jewish state is key to their own identity.”
  — Elizabeth Joh [08:54]

• On ambiguity and conflicting perspectives:

  “It's not even that there's a unified view among Jewish students and faculty on this very issue.”
  — Elizabeth Joh [21:56]

• On neutrality as a policy:

  “Neutrality is a statement.”
  — Elizabeth Joh [27:28]

• On future conflict resolution:

  “It would have to go up to the Supreme Court. Or don't forget that, because this is about an interpretation of the Civil Rights Act. Congress could always step in and say, oh, no, we didn't mean that. We redefine what it means to violate Title VI…”
  — Elizabeth Joh [29:53]

Timestamps for Major Segments

• Historical context, Nixon & Kent State: 00:36–03:41
• Recent Israel-Hamas protests on campus: 05:04–07:10
• Free speech: public vs. private universities: 07:10–10:19
• Title VI basics and expansion: 10:19–14:54
• Enforcement and lawsuits: 15:02–21:15
• Ambiguity, disagreement, intra-group divide: 21:15–22:20
• Institutional neutrality: 23:04–26:54
• Neutrality's limits & the coming legal battles: 27:02–31:57

Takeaway

The episode illustrates how campus speech and protest rights have become a tangled web involving free speech, anti-discrimination law, competing group identities, and institutional policies. Ongoing protests over the Israel-Hamas war present new legal questions under both the First Amendment and Title VI, with colleges caught between responding to student demands and avoiding legal liability. Court battles are looming, but the answers—for students, faculty, and universities—are anything but clear. As Professor Joh concludes, it’s a “perfect storm of a problem” for law, culture, and campus life in America today.