The anti-war protests that engulfed campuses around the country over the last academic year have made crystal clear the powerful role that universities play as regulators of political speech—and the corresponding importance of Title VI as a law that regulates speech. Although nominally a statute that regulates racial or ethnic discrimination in education, not speech, Title VI has emerged as the primary legal instrument invoked in court by those on all sides of the student protests to argue that universities should have handled the protests differently. Administrators have also turned to Title VI to justify their decision-making, including their sometimes significant repression of student speech. For example, in April 2024, Columbia University’s then-President Minouche Shafik referred to Title VI to justify her (very controversial) decision to send in the police to break up Columbia’s protest encampment.

Exactly what Title VI requires of university administrators in response to protests like the one at Columbia—protests that make political claims that can be translated into claims about ethnic or religious identity—is a difficult and contested question, which no doubt other contributors to this blog series will explore. But the Department of Education (DOE), which enforces Title VI, has made clear in its recent guidance that university administrators are right to be concerned about their Title VI liability if they fail to take what the department views as adequate steps to regulate how students speak to one another, not only one-on-one but when they engage in collective protest and symbolic action. The DOE has also launched over a dozen investigations into how universities responded to student protests over the past year and reached settlements with several universities over their handling of anti-Semitic or Islamophobic incidents on their campuses. And it has met privately with administrators at schools affected by student protests to advise them about their legal risks under Title VI.

Obviously, the fact that Title VI has come to possess such importance when it comes to the regulation of protest and political expression on campus means that its implementation raises significant First Amendment questions. The DOE guidance documents have acknowledged as much. In its latest guidance document, for example, the DOE insisted (as it has in previous guidance documents) that its enforcement of universities’ Title VI obligations “are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution” and that Title VI “protect[s] students from invidious discrimination” but is not intended to “regulate the content of speech.” But distinguishing between the two is no simple matter.

Read more at Knight First Amendment Institute at Columbia University