The Trump administration’s case against UCLA shows the danger of hostile environment claims.
O ver the last few weeks, the Trump administration issued a finding of fact that UCLA violated the rights of Jewish students. As a result, the administration suspended over $500 million in grants, then demanded that UCLA pay $1 billion to the U.S. Treasury and victimized students to lift the grant freeze. The complaint has merit, insofar as it addresses one shameful week of the university tolerating student protests that violated their peers’ civil rights. However, the administration is showing us how the hostile-environment doctrine of civil-rights law can subordinate freedom of expression to political orthodoxy.
In August 2024, a federal district court issued an indignant preliminary injunction in Frankel v. UC Regents. As a faculty member whose office borders the main quad, I personally witnessed the events contested in this case. In April 2024, anti-Israel protesters seized about half of the main quad for seven days, most of which fell during midterm examinations. During this time, the protesters controlled access to part of the quad, including the main entrances to the undergraduate library and the university’s most iconic hall; they only allowed access to these outdoor areas to their ideological sympathizers. The court agreed with Frankel and the other plaintiffs, all Jewish students, that the protesters’ being allowed to set up an anti-Israel ideological litmus test to cross the main quad or enter the library via the front door violated the plaintiffs’ civil rights.
To the extent that the Trump administration is punishing UCLA for allowing a barricade on the quad, a fine is appropriate — but nothing like a billion dollars. The university was unduly passive during that midterms week in spring 2024. But prior to that week, Students for Justice in Palestine (SJP) and their allies generally restricted themselves to First Amendment–protected activities like marches, leafleting, and signs. Since the week in question, UCLA has reacted swiftly to SJP’s occasional criminal actions like taking over buildings or terrorizing a regent’s family.
The Department of Justice complaint does not limit itself to that one chaotic week and explicitly blames UCLA for the hostile environment that “Jewish and Israeli students faced on its campus from October 7, 2023, to the present.” This puts UCLA in an impossible position. Under First Amendment case law and the tradition of academic freedom, the university has the right to enforce reasonable time, place, and manner restrictions — but no right to shield students from speech that they find offensive. Yet the premise of the Department of Justice complaint is that exposure to anti-Israel opinions constitutes a hostile environment.
This is a break from the right’s usual support for robust free-speech protections on campus. For instance, both the House and Senate versions of the Campus Free Speech Restoration Act are Republican bills. And in his first term, Donald Trump issued an executive order aimed at higher education with the laudable sentiment that “free inquiry is an essential feature of our Nation’s democracy, and it promotes learning, scientific discovery, and economic prosperity.” There has been such a strong association between support for free speech on campus and the right that critics often accuse the civil-liberties group Foundation for Individual Rights and Expression of being right-wing shills, even though it has a strong tradition of representing plaintiffs from both left and right.
Likewise, we on the right have traditionally been skeptical of the “hostile environment” doctrine of civil-rights law, precisely because we know it effectively mandates that private organizations enforce censorship as risk mitigation. Right-leaning scholars like Eugene Volokh, David Bernstein, Gail Heriot, and Richard Hanania have done serious work on how hostile-environment doctrine exposes companies to risk if they fail to suppress supposedly sexist, racist, or otherwise bigoted employee speech that might disturb co-workers. But now that the right has returned to power and faced particularly obnoxious speech, the administration has abandoned a traditional commitment to free speech and embraced hostile-environment doctrine, all abetted by the powerful tool of threatening to freeze grants and student visas to pressure universities.
The way to explain why the right generally favors free speech in higher education but the Department of Justice demands punitive fines against UCLA is an application of Lenin’s universal heuristic “who, whom?” In answering this question, the right decided that we like Jews and dislike anti-Israel activists, as well as wokeness more broadly. And I sympathize, as I personally like Jews (I grew up as one) and hate wokeness. Moreover, I have utter contempt for people who do not restrict themselves to concern for civilians in Gaza or settler vigilantism in the West Bank, but instead actively celebrate the October 7 terrorist attack as an “act of resistance,” and chant slogans like “from the river to the sea” that imply ethnically cleansing Jews. The standard cannot be that students are whiny snowflakes if they are offended by speech about racial gaps in crime statistics, but punitive government action is justified when students are offended by anti-Israel speech.
Students and other university members deserve unimpeded access to campus facilities and the right to express their opinions. To the extent that UCLA allowed denial of access to educational facilities, we deserve proportionate punishment. But the solution to that problem cannot involve demands that could only be met by violating academic freedom and First Amendment rights. The real tension between free expression and hostile-environment doctrine calls for reevaluating the latter.