By Tal Fortgang
Monday, October 06, 2025
With students returning to campus and activists vowing
to ramp up controversial
demonstrations, the clash between civil rights claims and various freedoms—of
speech, association, academic pursuits—will once again make news. So will the
Trump administration’s ongoing campaign to stamp out concomitant discrimination
against Jews and Israelis.
These battles will illuminate, for those who can bear to
see it, an unavoidable general truth about our civil rights regime. Our civil
rights laws, codified primarily in the Civil Rights Act of 1964, have always
been in tension with the Constitution. That does not mean they are
categorically unconstitutional. But civil rights law’s demands do test the
First Amendment’s boundaries somewhat regularly. Imagine a professor repeatedly
using racial slurs in class. Does that constitute de facto discrimination against
minorities? Perhaps it depends on the context. But no matter where it lands, a
court adjudicating a civil rights complaint will have to decide where freedom
ends and a proscribed harm begins. And courts have done so for decades,
developing a web of doctrines to navigate these thorny issues.
There is no scandal in this fact. Civil rights law is
hardly unique for it: Laws regulating defamation, harassment, and incitement do
the same thing. So do laws regulating firearms, rules delineating what “due
process of law” applies in certain situations, and so on. Courts have to figure
out whether, to what extent, and in what circumstances, the public interest
justifies limiting constitutional rights—even speech and expression.
But in the context of civil rights enforcement the
mundane inevitability of tradeoffs can be hard to accept, because civil rights
law and the First Amendment are probably the two laws held most sacred in
contemporary American culture. Accepting that they do not easily fit together
and frequently require compromising each one’s core principles on behalf of the
other’s is a bitter pill.
For the past several decades, that pill has not been so
difficult to swallow: These tradeoffs were acceptable, or at least manageable.
That all changed in 2025, when President Donald Trump’s administration pressed
the civil rights regime to mean what it says—and say what it means.
***
The Civil Rights Act establishes the principle of
non-discrimination in nearly every aspect of American life. Title II outlaws
discrimination based on race, color, religion, or national origin in all
establishments open to the general public. It is what makes it illegal for
restaurants and hotels to refuse service to black people, Irish Americans, or
Muslims. Title VII does the same for employers, while including sex as a
protected category.
But the main flashpoint for recent controversies has been
Title VI, which makes it the “policy of the United States that discrimination
on the ground of race, color, or national origin shall not occur in connection
with programs and activities receiving federal financial assistance.” As courts
have made clear since its ratification, Title VI protects against more than the
overt discrimination of “minorities not welcome here.” Viewing the fight for
civil rights as a crucial social goal, courts (and the federal government) have
developed doctrines pursuant to Title VI that punish employers, universities,
and other institutions that respond inadequately to discrimination or
harassment occurring under their aegis.
Now, the government can sue academic institutions under
Title VI for just about anything. In 2022, for
instance, the federal government threatened to sue a Texas school district
over a rule requiring parents to present Social Security cards as part of the
student-enrollment process. Though Texas claimed no family had been denied
enrollment because there were alternative procedures available, the government
insisted that the policy likely deterred immigrants from trying to enroll in
the first place, amounting to a “disparate impact” on non-citizens due to their
(non-American) national origin.
This is one example of a massive federal bureaucracy
charged with sniffing out and snuffing out discrimination in institutions that
receive federal aid of any kind. Sometimes the subtler forms of hostility that
give rise to Title VI claims take the shape of policies, such as universities’ use
of “personality scores” to disadvantage Asian American applicants. When the
Supreme Court ruled such programs illegal two years ago, universities vowed
through gritted teeth that they would comply, though administrators clearly
were not happy. For the most part, though, they did not condemn the
anti-discrimination principle of civil rights law outright.
Now, however, that bridge has been crossed. The
precipitating cause is the Trump administration’s effort to hold universities
responsible for tolerating—whether as a matter of policy or not—expression and
conduct that amounts to hostility against protected classes. The federal
government revealed that there is no civil rights consensus at all, using the
perfect vehicle to prove it: discrimination against Jews and Israelis.
It did so with significant help from Harvard. A standard
bearer in American education and culture, Harvard has led the charge in
resisting the Trump administration’s purported effort to enforce Jews’ and
Israelis’ civil rights by threatening to revoke federal funding from
universities taking insufficient action to remedy such violations. It has even
brought the collision of civil rights and the First Amendment into sharp relief
by suing the government for, inter alia, infringing its rights to
conduct its affairs freely. While that suit has succeeded thus far on largely
procedural grounds—the Trump administration did not follow the prescribed steps
for enforcing civil rights law—Harvard has
also asserted that the administration has overstepped on the underlying
substance by meddling in the university’s internal affairs.
Behind the Harvard legal drama is a backdrop of an
admittedly toxic campus culture of discrimination against Jews and Israelis,
both protected groups under Title VI. A university-commissioned report
called the situation of Israelis at Harvard “dire.” In contrast to the
theoretical chilling effects on school enrollment in Texas, the Harvard Task
Force on Antisemitism found that “Jewish students told us they turned down
offers of admission at Harvard Schools” while “Jewish students completing PhDs
… decided to leave for private industry” because their campus was “unfriendly
to Jews.” The report tied the hostility to classroom instruction, among many
other sources: “the failure of some of our instructors to teach about
Israel/Palestine with academic breadth and rigor” is “shameful.” One example
was a “Pyramid of White Supremacy” from a required Harvard School of Education
course that accused anyone opposed to divesting from and boycotting Israel of
“coded genocide.”
At no point during all of this has Harvard denied that it
has a problem. In fact, it has acknowledged it repeatedly. President Alan
Garber, calling antisemitism “one of the most insidious forms of bigotry” that
warrants “urgent action,” admits that “it is present on our campus,” which he
knows firsthand because, among other evidence, he was depicted in an
anti-Israel encampment as a horned demon.
Yet the stance Harvard has adopted and modeled for the
rest of the nation illustrates the civil-rights consensus’ collapse. While
admitting that his campus had an unresolved discrimination problem, Garber
nevertheless led a rhetorical charge to insulate his campus from federal
oversight. “No government—regardless of which party is in power—should dictate
what private universities can teach, whom they can admit and hire, and which
areas of study and inquiry they can pursue,” he wrote in a
statement echoed by fellow academic leaders. Former Harvard President Larry
Summers decried
the notion that “the federal government [can] make a demand that it be involved
in the review of who’s going to be a professor at Harvard and who isn’t. That’s
just not the way we do things in the United States.” Harvard professor Steven
Levitsky added
that “the government is demanding the right to dictate to a private university
who it can hire and not hire and effectively what it can teach and cannot
teach. That’s the end of academic freedom. That is completely incompatible with
a democratic society. And I know of no democracy that’s ever permitted that
sort of intervention.”
Except, there is at least one democracy that has long
given the government the right to meddle in universities’ internal affairs if
the school fails to uphold its civil rights obligations: The United States.
Civil rights law has always empowered the government to
threaten academic institutions with loss of public support if those
institutions hire people who foster discrimination or teach in ways that do the
same. It has simply been a very long time since Americans have paid attention
to documented instances of students, professors, and administrators engaging in
blatant discrimination.
If discrimination emanates from the classroom, as the
Harvard Task Force found, the federal government is empowered to demand that
the university fix it—or suffer the consequences. This would be obvious and
uncontroversial if a university’s department of Whiteness Studies taught about
the evils of African migration to Europe, hiring professors and admitting
students with demonstrated records of calling for black people to go back to
Africa. The university could invoke the force field of academic freedom, but
would soon be reminded that academic freedom, like the protections of the First
Amendment, has long been so limited.
In other words, the threat to these freedoms does not
come from some diabolical twisting of civil rights law—it comes from the law
itself. That fact has led those who sympathize with Harvard to adopt a
well-worn line popularized by opponents of civil rights law per se. “Can
we just let private institutions admit and hire the people they want to admit
and hire,” asked
writer James Surowiecki, “instead of having the government dictate to them whom
they have to accept?” The answer is no, not since 1964. About a week
later, 14 members of Congress wrote
to Harvard, denouncing “attempted interference by the President and his
administration in the governance of independent institutions, including
universities.” The lawmakers went on to reject the government’s role in
enforcing civil rights law in one blithe sentence: “If these actions are rooted
in students’ concerns of legal compliance with civil rights law, any settlement
must be with those students individually or as a class, not with a federal
government bent on imposing its political will on universities.”
Such an imperative would come as a shock to the myriad
institutions that have faced Title VI investigations in recent
decades—sometimes initiated by the government on behalf of purely theoretical
victims, as in the Texas example above, or the school district in Colorado forced
to overhaul its disability accommodations evaluation procedures because
“students of color with disabilities are overrepresented within the population
of students identified as eligible” for additional services (though no
potential recipient claimed to have been treated unfairly in the process).
Nobody batted an eye at the government’s involvement, or even that the
government could dictate the terms of eventual resolution agreements. That is
simply how Title VI enforcement has always worked.
Harvard is left with two moves: deny that discrimination
runs rampant on its campus or deny that Jews or Israelis are protected by law.
It denies neither. Instead, it has adopted the rhetoric of complete opposition
to civil rights law. Why? Maybe it’s an impulse, a ploy to win the sympathy of
Americans who see Trump as a tyrant, or a last-ditch effort to save its
reputation. The bigger question is: Why have so many elites and self-described
liberals followed, failing to hear how they echo mid-20th century
resistance to the civil rights revolution?
***
In actuality, there are two conceptions of civil rights
in this country. One is the official explanation for civil rights law, which is
that it rests on an anti-discrimination principle. The other—the shadow one,
but the one whose hegemony explains the current uproar over the clash between
Harvard and the feds—is that civil rights rests on a remedial principle.
That is, it exists to remedy historical mistreatment and resulting disparities.
The shadow conception follows familiar logic. The Civil
Rights Act passed primarily to help black Americans, because that is the group
that suffered the most prolonged and destructive mistreatment in the United
States. Rather than protect all people against discrimination due to unchosen
characteristics, it is meant to focus on rooting out discrimination against the
groups that Americans have historically treated the worst.
Women and other ethnic minorities deserve protection,
too, because they have historically received unequal treatment. The remedy for
discrimination, in this view, is not to adopt a broad anti-discrimination
principle but to establish special protections for groups that continue to
struggle in aggregate; this need not entail affirmatively engaging in
preferential treatment (though it often has), but construes civil rights law as
only applying to marginalized groups, or those that continue to suffer
subpar outcomes at the group level.
This conception helps explain how civil rights law has
been deployed for decades without drawing a peep from Garber, Surowiecki, and
their ilk—penetrating, powerful, and highly protective of some groups, at times
by countenancing narrowed freedoms of expression and association. It overlapped
with, and drew plausible deniability from, the anti-discrimination conception
of civil rights, though it disturbed
some
observers
by penetrating farther into private spheres than was obviously necessary. So
even as a few
conservative and libertarians decried the use of civil rights law to hold
supervisors and administrators liable for permitting arguably hostile
environments, they were the exception that proved the rule, and the appearance
of consensus began to form. Everyone, left, right, and center, was on board
with civil rights enforcement, even as it could
intrude
somewhat on
some rights and freedoms—even academic freedom, and the right of universities
to hire and admit whomever they please.
The illusion of consensus persists where the remedial and
anti-discrimination theories point in the same direction—in other words, where
the suffering group is historically disadvantaged. If universities had
Whiteness Studies programs as described above, everyone would agree that the
federal government would be within its rights to force universities to root out
that racism on pain of losing federal support. The worst offenders could even
see their tax-exempt status revoked.
The problem is that the two justifications for our civil
rights regime are actually incompatible, even if they occasionally work in
tandem. To the anti-discrimination crowd, treating someone unequally because of
an immutable characteristic is a logical error leading to a moral affront.
Enshrining the principle of equality thus presented a compelling public
interest that could warrant limiting freedoms of speech and association if
those freedoms were used to assault individuals’ dignity on account of their unchosen
characteristics. But to the reparative or remedial school, civil rights law
justifies infringing those rights to foster equality between groups. Any use of
civil rights law that did not foster greater inter-group equality—or threatened
to worsen it—would be a perversion of the law.
No group exposes the rift between the anti-discrimination
crowd and the remedial crowd quite like Jews.
Jews do not lag behind other groups in income,
educational attainment, or other socioeconomic outcomes. On the contrary, Jews
have succeeded greatly in the United States, on average, despite being
persistent victims of discrimination. A century ago, elite universities
established quotas to keep the number of Jews in their ranks down. The Jewish
state of Israel has become rich and powerful despite facing constant attacks
from annihilationist neighbors and a decades-long delegitimization campaign.
Today, Jews are the targets of hate crimes in obscene
proportions, especially in large cities like New York.
And on campus, as Harvard and many watchdogs have long noted, Jewish students
have faced harassment in the language of anti-Israel activism, mock “eviction
notices” placed on students’ dorm room doors, and the strange
persistence
of classically
antisemitic
imagery.
To the anti-discrimination camp, this is as much an
affront to human dignity as any other form of prejudice. Even treating Israelis
unequally on the basis of their country’s prosecution of the ongoing war in
Gaza violates the anti-discrimination principle. Israelis don’t choose where
they were born; you can’t treat them worse because they are Israeli, even if
you have good reason to dislike the state of Israel.
To the remedial camp, though, turning civil rights law
against anti-Israel demonstrators is “weaponization.” Anti-Israel activists
speak for the downtrodden; Israelis are powerful. Jews don’t need help or
protection of law, because they do not suffer “systemic” oppression. That
doesn’t mean Garber and those who echo his rhetoric believe Jews deserve no civil
rights protection. But it means they would rather roll back civil rights law
enforcement significantly when it applies to Jews and collides with other
freedoms.
The two views are irreconcilable, and apparently neither
one maintains the cultural consensus the former did in the aftermath of the
civil rights revolution. That does not mean they are equally legitimate. The
anti-discrimination principle is the one written into our law, and which passes
constitutional muster under the Equal Protection clause. It is the one that
justifies limiting the freedoms of speech and association, and provides
guidance as to where the lines between protected speech and unprotected discrimination
are drawn.
If we no longer have a consensus on the
antidiscrimination principle written into the Civil Rights Act, perhaps it is
time to consider following the emergent consensus’s lead: repealing the law and
reverting to the pre-1964 status quo. We could “let private institutions admit
and hire the people they want to admit and hire.” If advocates of the remedial
view believe their view has popular support, they can try to pass a law—a
constitutional amendment would likely be necessary—that says what it means.
This is not as radical as it sounds. The truly radical
thing is to leave a shadow civil rights regime in place for future governments
to use despite knowing that it never passed into law. If we had a consensus
about what our civil rights laws meant, we could preserve a robust
anti-discrimination principle that protects all covered groups equally, even
when doing so conflicts with other political commitments. This would mean
accepting that civil rights law sometimes narrows the outer bounds of free
speech and academic freedom, a bitter but swallowable pill. Or we could abandon
the pretense of universal anti-discrimination and openly embrace a system of
selective enforcement based on which groups deserve protection, while others
have their interests subordinated to freedom of inquiry, speech, and
association.
For now, we have neither—just one law on paper and
another in the shadows. The implications of that revelation extend far beyond
the campus.
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