Simkovic: Columbia Law Professor Says Columbia University Violated Federal Laws, Fostered A ‘Hostile Environment’ On Campus

TaxProf Blog op-ed: Columbia Law Professor Says Columbia University Violated Federal Laws, Fostered A "Hostile Environment" On Campus, by Michael Simkovic (USC; Google Scholar):

Professor Joshua Mitts (Columbia Law School) argues that Columbia university violated the civil rights of Jewish and Israeli students by fostering and tolerating a hostile educational environment on campus.  Mitts writes:

Since October 7, Jewish students at Columbia have been subject to appalling episodes of antisemitism both on campus and just outside the campus gates, which intensified with the establishment of the encampment.  As documented in an open letter signed by hundreds of faculty and thousands of community members, these included chants like “Go back to Europe” and “You have no culture” and the display of signs like “Al Qassam Brigade’s next target” with an arrow pointing to Jewish students.  The list is too long to write in its entirety but there are ample video compilations and documented evidence online.

If that is not hostile-environment harassment, I am not sure what is.  If the KKK were to set up an encampment and chant that Black students should “go back to Africa,” it seems unlikely that one would “fiercely contest” whether this was “public-spirited advocacy.”  Why is the conclusion any different when one substitutes “Europe” for “Africa” and “Jewish” for “Black”?  Surely the Israeli-Palestinian conflict is no excuse—certainly no more of an excuse than the Rwandan genocide or Darfur would be. 

As Columbia’s task force on antisemitism noted in its first report, “speech or conduct that would constitute harassment if directed against one protected class must also be treated as harassment if directed against another protected class.”  ... [T]he university should be consistent in applying that standard to Jewish and Israeli affiliates as well.  In its most recent May 7 letter, the Office of Civil Rights of the Department of Education (OCR) issued guidance reaffirming the importance of “different treatment analysis. ...

OCR has stated consistently that harassment qualifies if it is “so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”  There is a difference between “preventing” and “limiting” a Jewish student from participating in educational programs...."

If Mitts' analysis is correct, the consequences for Columbia for violating Title VI and Title VII could be severe.  While it is likely that Columbia would take whatever remedial action the government or courts demanded to avoid severe penalties, a standoff could lead to dire consequences potentially including a loss of federal funding.  Important sources of federal funding include the ability for students to finance their education using federal student loans and pell grants, as well as billions in federal research funding.  Columbia could also face multimillion dollar civil judgments from private lawsuits.

Columbia's latest financial reports suggest that up to $4.4 out of $6.1 billion of its annual revenue comes from sources tied to the federal government, including tuition, research grants, and reimbursements from treating patients.  Payments for healthcare come in part from Medicare and Medicaid and partly from private medical insurance and direct payments from patients.  The amount actually coming from federal sources that could be at stake may be close to one third to one half of revenue.  

Columbia's profit margins are razor thin—$200 million in operating income on $6.1 billion in revenue—meaning that liability or federal sanctions would likely force the university to either cut costs, borrow money, or eat into its endowment and thereby reduce its long term competitiveness.

Columbia’s President recently issued a statement saying that protests and related incidents were creating an unsafe, hostile environment, and were in fact violating Title VI.  Columbia Professor David Pozen disagrees  with her analysis.

A recent editorial in the Financial Times by Columbia University's president attempts to explain the long delay before Columbia took serious corrective action—roughly 7 months from early October to early May—in terms of balancing free speech concerns with compliance with mandatory federal civil rights laws.  As a matter of law, free speech regulations apply to the government, not to private universities in New York state such as Columbia.  Universities may have voluntary principles relating to encouraging open dialogue on campus, but if these conflict with federal law, federal law prevails.

Prior TaxProf Blog coverage:

• New York Times, 54 Columbia Law Faculty Condemn Administration For Disciplinary Action Against Anti-Israel Student Protesters (Apr. 23, 2024)
• Washington Post, Punish Columbia Professors, Not Students Protesters, For The Intellectual Degeneration On Campus (Apr. 28, 2024)
• Law.com, Columbia Law School Delays Exams Amid Protests and Police Activity (May 1, 2024)
• Bloomberg Law, Columbia Law School Offers Optional Pass/Fail Grading Amid Campus Protests (May 2, 2024)
• Washington Free Beacon, “Irrevocably Shaken”: Columbia Law Review Editors Demand Cancellation Of Exams Due To Campus Protests (May 4, 2024)
• Reuters, Columbia Law Dean Voices Confidence In Graduates In Face Of Conservative Judges' Boycott (May 8, 2024)