To Appease Protestors, Universities Promise To Violate Civil Rights Laws


To Appease Protestors, Universities Promise To Violate Civil Rights Laws

May 8, 2024 4 min read
GianCarlo Canaparo

Senior Legal Fellow, Edwin Meese III Center

GianCarlo is a Senior Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
Students set up tents outside Northwestern University as part of an ongoing protest in Evanston, Illionis, United States on April 25, 2024. Jacek Boczarski / Anadolu / Getty Images

Key Takeaways

For the promise of peace, Northwestern and Rutgers have promised to violate the Civil Rights Act of 1964.

Title VI forbids discrimination based on race, color, or national origin in any program or activity receiving federal funds.

Lawsuits are likely coming, and the schools will probably lose.

To date, at least three universities have caved to their anti-Israel mobs. Northwestern, Rutgers, and the University of Minnesota have reached agreements with the students and activists who have occupied their campuses.

For the promise of peace, Northwestern and Rutgers have promised to violate the Civil Rights Act of 1964. Minnesota apparently bargained better because it got away with a promise only to consider violating the Act.

The suspect parts of the agreements are vows to dole out admission, scholarships, faculty positions, and other resources based on Palestinian or Arab ethnicity or on Muslim religious belief.

Northwestern promises to fund two professorships for Palestinians, give five full-ride scholarships for Palestinian students, and build a house for middle eastern and Muslim students. Rutgers promises to admit and give scholarships to ten Palestinian students, build an Arab Cultural Center, hire additional diversity, equity, and inclusion staff with “cultural competency” with Arabs, Muslims, and Palestinians, and consider hiring faculty for a Middle East Studies department.

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Minnesota, meanwhile, gestures more vaguely at including Palestinian faculty as part of its “scholars at risk” program and at other ways to “express and evidence support” for Palestinian students.

Each of these promises has different civil rights implications. Let’s explore each in turn.

To start, the Civil Rights Act of 1964 includes two relevant parts. Title VI forbids discrimination based on race, color, or national origin in any program or activity receiving federal funds (all three universities qualify). And Title VII forbids discrimination based on race, color, national origin, or religion with respect to any “terms, conditions, or privileges of employment.” Title VII also makes it illegal for employers to “limit, segregate, or classify” their employers on those bases.

Turning first to the guaranteed admissions for Palestinian students, we already know from the Supreme Court’s decision in Students for Fair Admissions v. Harvard that schools cannot give racial or ethnic preferences in admissions. But even before that decision, schools were prohibited from using numerical quotas. Rutgers has thus opened itself up to lawsuits by private plaintiffs and the federal government.

Next, the scholarships likely violate Title VI because the schools promise to make Palestinian ethnicity a requirement. Title VI is all about disparate treatment. The question is whether a federally funded program or activity treats people differently because of their race or national origin. That’s obvious from Northwestern’s and Rutgers’s promise to make these scholarships available only to Palestinians.

Less obvious, however, is whether the schools can convince a court that a scholarship is not a “program” or “activity.” As far as I am aware, only one court has directly answered that question. But—bad news for Northwestern and Rutgers—it held that scholarships are covered by Title VI.

Incidentally, that conclusion is also probably the best application of Students for Fair Admissions to the scholarship context. The Supreme Court there was not concerned with deciding whether the admissions process was a “program” or “activity.” Rather, as Justice Neil Gorsuch suggested in his concurring opinion, Title VI applies to anything that a school does once it agrees to take federal money. Whether the institution labels its activities a “program,” a “scholarship,” or something else is immaterial.

That brings us to the schools’ promises to create houses and cultural centers for middle eastern, Arab, and Muslim students and a Middle Eastern Studies department. The question will be intent. Are the resources intended only for Palestinian, Arab, and Muslim students? That the schools have singled out those groups in these agreements is strong evidence that they are. So too are reports that Jewish student groups were excluded from these negotiations.

But more proof will come as the schools build and staff these programs. Israelis are middle easterners. Will they be permitted to use these programs? Will they be hired into them? Will the people who are hired into them give the same support to Israeli and Jewish students that they do to Palestinian and Muslim students? If the answer to any of these questions is “no,” that’s strong evidence of discriminatory intent.

Hiring faculty and DEI officials brings us into the realm of Title VII. Setting positions aside for people of certain races, origins, or religions is unlawful. That’s the easy case. The harder case is whether “cultural competency with Palestinians, Arabs, and Muslims” is code for someone who has one or more of those protected characteristics. Again, could the position be given to an Israeli, a Jew, or a Christian? Could someone who is not Arab, Palestinian, or Muslim have the “cultural competency” that the schools seek?

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Given the context in which these assurances were made and the intellectual commitments of left-wing school administrators, a reasonable person would be justified in suspecting that the answer is “no.” If that assumption is right, the question is, how well can the university hide it?

The same goes for staffing a Middle Eastern Studies department. Will anyone who is not a Palestinian, an Arab, or a Muslim be seriously considered? Would a Zionist Israeli Jew be considered? The occupying protestors would surely show up again if one was, and that’s exactly what the schools are trying to avoid with this promise.

In short, all signs point towards discriminatory intent and so suggest that the schools have, in several ways, paid for peace with a promise to break the civil rights laws.

Perhaps the schools, sophisticated and well-lawyered though they are, didn’t think of it. Perhaps they’re so lost to an ideology obsessed with race, ethnicity, and oppression that they can’t imagine that the law sees things differently. Or perhaps the schools did know, and they hope that the law will provide them with a way out of agreements that they didn’t have the courage to oppose.

Either way, lawsuits are likely coming, and the schools will probably lose.

This piece originally appeared in The Federalist Society