To show they are serious about stamping out campus antisemitism, some of the nation’s top universities are adding a powerful position to their administrative ranks.
The position has a modest sounding title: Title VI coordinator. The responsibilities, however, are significant: to oversee and ensure compliance with Title VI of the Civil Rights Act, which prohibits discrimination in federally funded programs “on the ground of race, color or national origin” and also covers Jews, Arab Muslims and other religious groups.
Columbia University, the University of Pennsylvania, New York University and Harvard University — all accused by the Trump administration of failing to protect Jewish students from harassment — have recently added the job to their administrative rosters.
But some legal scholars and academics say the new job could complicate the worthy goal of stopping harassment of Jews on college campuses. And they point, somewhat unexpectedly, to what they say is a cautionary tale of swollen academic bureaucracy and adverse outcomes: President Barack Obama’s efforts to prevent campus sexual assault under Title IX, which prohibits discrimination based on sex.
Supporters of the expanded focus on Title VI say that with antisemitism on the rise, colleges need to put in place a formal, professional apparatus for handling complaints about harassment of Jews and fostering a better understanding of the Jewish people.
“It is a good thing for institutions to treat antisemitism as seriously as they do any other form of hate or bias,” said Kenneth L. Marcus, a former official in the Education Department under President George W. Bush. He wrote the broadened anti-discrimination Title VI guidelines in 2004, which were the first to include religion.
But some legal experts warn that expanding Title VI oversight could lead universities into contentious thickets over defining antisemitic speech and adjudicating complaints of harassment. The end result, they say, could set new limits for permissible forms of expression, chilling speech on the quad and in the classroom.
Jacob Gersen, a Harvard Law School professor who has been critical of Title IX enforcement in schools, said extending that framework to antisemitism has risks.
“These are really laudable aspirations, period,” he said. “But that doesn’t mean that anything anyone would do in pursuit of those aims is desirable.”
Mr. Gersen and other critics of the Title IX rules sometimes refer to an old saying — “God will forgive you, but the bureaucracy won’t” — to highlight how colleges built what they say is a rigid, inefficient system around sexual assault prevention.
The Obama administration’s interpretation of Title IX was meant to compel colleges to take the scourge of campus sexual assault more seriously. But it also put colleges in the uncomfortable position of having to investigate — and adjudicate — the murkiest claims of sexual assault and harassment, which even the criminal justice system can have a difficult time untangling.
Historically, Title IX authorized the government to monitor whether educational institutions — not students — were engaged in discriminatory conduct.
But in a pivotal shift, the Education Department’s Office of Civil Rights published new guidance for institutions in 2011. The office said that for institutions to remain in compliance with Title IX — and eligible for federal funds — they were required to thoroughly investigate and adjudicate sexual assault allegations with a disciplinary process and a standard of evidence that many critics said favored accusers. An institution’s investigative process, the guidance said, would be subject to federal review.
“What really made a huge difference was that it was now the school’s responsibility to police behavior — not only of faculty and staff but also of students,” said R. Shep Melnick, author of the book “The Transformation of Title IX” and professor of American politics at Boston College.
Universities rushed to establish procedures that could pass muster. Some added a single Title IX officer; others created Title IX offices with multiple employees.
But they largely did not challenge the Education Department’s imposition of rules that, arguably, Congress was supposed to set. And they mostly did not push back against new disciplinary rules that many legal experts said ignored due process for the accused.
The result was a transformation of campus life. Beginning in the 2010s, universities invested in teaching students about sex, boundaries and the attendant notions of power and consent. And there was heightened awareness around harassment and abuse, which reached a crescendo with the eruption of the #MeToo movement in 2017.
But there were also lawsuits over disciplinary measures, which could tie up administrations, students and faculty members for years. In one infamous case from 2015, a film studies professor at Northwestern University faced several investigations after she condemned the institution’s Title IX process and defended a colleague she believed had been wrongly accused of sexual misconduct.
Mr. Gersen, the Harvard law professor, said he believed the universities’ deferential posture on Title IX had emboldened the Trump administration to take aggressive action today.
“The lack of public pushback from the universities made it clear that this works really well,” he said.
The Trump administration is using the cudgel of cutting off federal spending, too, said Mr. Melnick of Boston College. But, he added, “they’re just doing it on steroids.”
The Obama approach to Title IX was similar to what government agencies had done for decades to implement their agendas on issues from the environment to highway safety. The government uses its leverage as holder of the purse strings to ask its beneficiaries to do something new. The beneficiaries comply. Then they get their money.
The Trump administration has brought a new aggressiveness to the approach: revoking funding first and then demanding changes to get it back.
After Mr. Trump took over in January, the Education Department’s Office of Civil Rights warned 60 universities that they were under investigation for possible Title VI violations and started to cancel grants and other funding at several of them.
In settlements, Columbia and Brown have agreed to pay huge fines while also creating policies intended to make Jewish students feel protected.
Some legal experts have said Mr. Trump lacks the authority to take away funding that has already been promised. And Harvard sued the Trump administration to unfreeze $2.2 billion in federal research money, calling the seizure unconstitutional and “flatly unlawful.” Its dispute with the government remains unresolved.
The Education Department, in a statement, said that by enforcing the law, the Trump administration was “using its personnel and resources responsibly and eliminating wasteful and unfounded investigations.”
Catherine E. Lhamon, who oversaw civil rights for the Education Department during the Obama and Biden administrations, said that the Trump administration could not speed up the defunding process unilaterally.
“Maybe it should be corrected — but you should go to Congress to do that,” said Ms. Lhamon, who now runs an institute on democracy and the law at the University of California, Berkeley.
She added: “What the president is doing is illegal. And we ought to be clear about that.”
As universities reset their codes of conduct to comply with the Trump administration, they could be forced into the uncomfortable and legally thorny role of regulating speech on one of the most combustible political issues of the day.
On many campuses, debates over the Israeli-Palestinian conflict are practically unavoidable, both inside and outside the classroom. Mr. Gersen, from Harvard Law, said that colleges could find their tasks unmanageable.
“There’s suddenly a whole domain of things that you’re not allowed to say or do, or are scared to do — and that the university has to investigate or punish,” he said. “The classroom is not an exception, so things said in class and even reading assignments are alleged to be potential violations of Title VI.”
Those critiques do not especially concern Mr. Marcus, who helped toughen Title VI.
“There’s such a thing as excessive self-censorship,” he said. On the other hand, “it isn’t necessarily a bad thing if some professors stop to think before they speak and realize that intentionally or not, they may be contributing to the antisemitism problems on their campuses.”