How Civil-Rights Law Became a Weapon Against Colleges

The Atlantic

16 hours ago

Progressives have long wished that the federal government would more aggressively enforce civil-rights law in higher education. Did they wish upon a monkey's paw? Since Donald Trump retook the White House, his administration has used the Civil Rights Act of 1964 to trap dozens of colleges in the federal equivalent of a headlock, forcing them to submit to sweeping demands or else have their federal funds frozen or foreign students banned.
According to Team Trump, it is targeting academics who violate civil-rights laws—by discriminating against Asian Americans in admissions, allowing biological males to compete with females in athletics, tolerating a hostile climate for Jews, or sponsoring DEI programs that malign straight, white, and male students. Critics of Trump's approach counter that he has ulterior motives. 'I consider the Trump administration's recent use of civil rights law either a pretext or a sick joke—or both,' Richard Delgado, a Seattle University law professor and pioneer of critical race theory, emailed me. 'The Administration's real objective is to intimidate institutions of higher education into doing their bidding.'
Whatever the intentions, these moves represent a clear shift. Not long ago, it was Democrats who stood accused of overzealous and p unitive enforcement. The Department of Education under Presidents Barack Obama and Joe Biden put forth sweeping new interpretations of decades-old civil-rights laws, particularly Title IX. At the time, classical liberals on the left and right (myself among them) warned that, although no one ought to face discrimination, the government's expansive approach had serious costs: for academic freedom, free speech, free association, the ability of private colleges to self-govern, and the maintenance of a limited federal government. Nevertheless, colleges all over the country began to police the speech of professors and students as never before. Even a tiny, unintentional slight could trigger a months-long ordeal.
Now Trump-administration officials are repurposing the illiberal playbook that progressives long deployed. Having seized control of the civil-rights-enforcement apparatus, they are aiming it at parts of civil society that are hostile to the MAGA agenda—including universities. 'Civil-rights laws have always been a weapon,' an architect of the new strategy, the activist Christopher Rufo, recently wrote in The Free Press. 'Conservatives have finally decided to wield them.'
Protecting basic civil rights is truly important, and many of the prejudices and civil-rights violations that Obama, Biden, and Trump have variously cited are real. For that reason, many Americans are reflexively averse to the idea that there is such a thing as too much civil-rights enforcement. But the aggressive style born under Obama and plied with steroids by Trump is excessive. It serves fringe zealots eager to destroy academia's independence better than majorities who hope to improve higher education.
If anything good comes from this moment, perhaps it will be that the left learns to recognize the need for new limits on the administrative state. To enact such a reform, lots of Republicans will need to go back to their former position on limiting bureaucratic coercion.
The current era of aggressive civil-rights enforcement began in 2011. At the time, many progressives thought that colleges did not know how to handle sexual violence on campus and that they were responding to complaints in a way that was calculated to protect their image rather than students' safety. Title IX was seen as a solution. The 1972 law states that no person shall, 'on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity.'
On April 4, 2011, the Department of Education's Office for Civil Rights published a ' Dear Colleague' letter meant to clarify colleges' legal obligations under Title IX. The letter said that every college receiving federal funds had to appoint a Title IX coordinator. And most had to restructure how they treated allegations of sexual violence: College administrators were told to conduct independent investigations of sexual-assault allegations rather than relying on local police; to limit accused students' ability to cross-examine their accusers; to use a 'clear and convincing evidence' standard to find accused students responsible, rather than the higher 'preponderance of the evidence' burden of proof; to eschew mediation; and more.
The Department of Education's 'Dear Colleague' letters are supposed to be nonbinding guidance on what existing law requires, not new policy making. Yet the Obama administration was claiming that, to comply with the law, every institution had to adopt new policies that no institution had previously thought were required. The administration went on to investigate dozens of schools for departing from its novel interpretation of Title IX. Behind each probe was a threat: Comply or lose federal funding.
The pressure tactic worked. Colleges throughout the United States hired new administrators and lawyers. Many of those expanded campus bureaucracies went on to engage in illiberal excesses. A punitive apparatus 'was being built, expanded, and deployed' to regulate conduct 'further and further from the core cases of sexual assault than most people imagined,' the Harvard law professors Jeannie Suk Gersen and Jacob E. Gersen later wrote in a law-review article. To stay out of trouble, the Gersens argued, many schools forbade 'conduct that the vast majority of students commonly engaged in during consensual sexual interactions.'
The new regime put colleges in a double bind: Complying with Title IX exposed them to lawsuits from students claiming that their due-process rights had been violated. Courts later ruled that many colleges did, in fact, deny students due process. Faculty members suffered unjustly, too, as when Northwestern University investigated Laura Kipnis on the premise that she had violated Title IX by writing critically about the new Title IX enforcement.
In 2017, the Trump administration took over, and Education Secretary Betsy DeVos mandated new protections for accused students. But campus Title IX bureaucracies remained intact, and colleges were still adjudicating complaints without knowing what the next U.S. president would demand. Indeed, when Biden was elected, his Office of Civil Rights reimposed much of the Obama-era approach, until a judge blocked the policy in a nationwide injunction. Trump's return to office effectively ended that legal fight, but there's no telling what the next president will do.
Under the new Trump administration, campus-civil-rights enforcement has focused on Title VI, the 1964 law that says no person shall, 'on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under' any program that gets federal funds. The administration contends that universities have violated the Title VI rights of Jewish students by responding inadequately to anti-Semitic campus activism. Beyond that, Trump's team insists that highly specific changes are required as a remedy if colleges want to keep their federal funding.
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Trump's team was not the first to apply Obama's Title IX enforcement model to Title VI. After Hamas launched its attack on Israel on October 7, 2023, and Palestine-aligned protests erupted on many campuses, political appointees at Biden's Department of Education issued a letter to clarify colleges' obligation to protect the rights of both Jewish and Arab students. The letter noted that protected speech wasn't unlawful. But it also said that some protected speech could contribute to a hostile environment that violates the Title VI rights of students, obligating a response from administrators.
Once again, colleges were in a double bind: Cracking down on protected speech would create legal liability, but so would failing to respond to speech that the state deemed anti-Semitic. Scores of investigations for alleged failures to protect the rights of Jewish students quickly followed. The Knight First Amendment Institute concluded that there was good reason to believe that the Biden team was 'leveraging its power to regulate discrimination' to force crackdowns on 'protected student and faculty speech.' The Gersens felt that history was repeating itself. Their aforementioned paper goes on to show how the Office of Civil Rights under Biden once again created incentives for colleges to 'over-police and over-punish' students and faculty, this time relying on Title VI. Driving out discrimination 'is a laudable goal,' the Gersens write, but pursuing it 'may also produce far ranging negative consequences that go to the heart of the academic mission.'
The new Trump administration has policed Title VI even more fervently, with initiatives from the White House and multiple federal agencies. In statements and executive orders, Trump has put colleges on notice, vowing to combat anti-Semitism and to treat all DEI initiatives as suspect (though guidance from the Department of Education seems to have softened that position). Trump has suggested that colleges should 'monitor' foreign students and staffers for anti-Semitism and 'report' their activities to the feds in case the students are eligible to be deported. Another executive order pressures college accreditors to strip the accreditation status of institutions accused of wrongdoing by civil-rights bureaucrats.
The Department of Education has launched various kinds of Title VI probes of more than 50 institutions and sent letters to 60 institutions warning of potential enforcement unless they act 'to protect Jewish students.' At the Department of Justice, the civil-rights attorney Leo Terrell is leading a Task Force to Combat Anti-Semitism; at the end of February, he announced visits to 10 campuses, and on March 7, the administration announced that Columbia would lose at least $400 million in federal grants 'due to the school's continued inaction in the face of persistent harassment of Jewish students.' According to The New York Times, the Justice Department also recently demanded that the University of Virginia push out its president to 'help resolve a Justice Department investigation into the school's diversity, equity and inclusion efforts'; the president resigned on Friday.
As a critic of DEI and anti-Semitism, I understand the impulse to crack down on both, much as I understood the impulse to crack down on sexual violence. But the administration's approach guarantees the same bureaucratic bloat and illiberal excesses that characterized Title IX enforcement.
Two of the administration's primary targets have already been subjected to treatment that wildly exceeds reasonable and lawful oversight. In a March 25 letter to Columbia, the Trump administration demanded not only that the university 'complete disciplinary proceedings' related to campus encampments, but that it impose a minimum penalty of expulsion or multiyear suspensions. But what if, in a given case, a one-year suspension is most just? The administration told Columbia to 'centralize all disciplinary processes under the Office of the President.' What statute empowers it to dictate how administrators and faculty divide power? It demanded that the institution 'formalize, adopt, and promulgate' a definition of anti-Semitism, as if institutional neutrality about that topic of debate is somehow at odds with Title VI. Most strikingly, it ordered Columbia to begin 'placing the Middle East, South Asian, and African Studies department under academic receivership' for five years, a flagrant intrusion on faculty governance and academic freedom.
In an April 11 letter to Harvard, the Trump administration made at least one legitimate demand––that the university comply with the Supreme Court's 2023 ruling that its admissions office cannot discriminate on the basis of race. But the administration also made demands that ought to be beyond the state's purview. Harvard was ordered to reduce 'the power held by students and untenured faculty' in its governance. It was told to pay for an external anti-Semitism audit that would list faculty members who discriminate against Jews so that they can be punished. Yet the next paragraph of the letter demanded that Harvard shut down all DEI initiatives. The letter even seeks to micromanage student groups; funding decisions 'must be made exclusively by a body of University faculty,' it states.
Harvard has rejected these demands in court filings, and it is suing the administration to stop it from enforcing the letter's terms. Still, the overall effect of the administration's enforcement is aptly summed up by the Foundation for Individual Rights and Expression. In an amicus brief supporting Harvard's lawsuit, the organization declared that the state's 'coercion of Harvard violates longstanding First Amendment principles and will destroy universities nationwide if left unchecked.'
An aggressive regime of civil-rights enforcement is easy to defend in theory. Without bureaucrats focused on the obligations that colleges have under Title IX and Title VI, institutions can neglect the statutory rights of students. Federally dictated policies and procedures can enhance consistency and impartiality. Investment in the Office of Civil Rights and campus-compliance structures can reduce sexual assaults and bigoted harassment. And penalties can be meted out justly to particularly bad actors. But that isn't how the civil-rights regime that arose in 2011 has worked in practice.
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The new Title IX bureaucracy cost colleges hundreds of millions of dollars to implement, from 2011 to 2016. And for all the bureaucracy's illiberal excesses, colleges ultimately reported an overall increase in forcible sex offenses during the same period. Meanwhile, policy making through the bureaucracy rather than Congress sowed dysfunction, with appointees of different presidents imposing wildly different, sometimes contradictory, accounts of what the law required, such that satisfying one administration got you in trouble with the next.
Similarly dismal results are likely as the Trump administration applies the Title IX playbook to Title VI. There is no reason to assume that Jewish students will be better off if colleges comply with every Trump-administration dictate. As Republican administrations used to understand, intense bureaucratic attention to a problem doesn't automatically improve it. And often, state coercion can invite state abuses, yield unintended consequences (see the Israeli students who will have to leave Harvard if Trump succeeds in banning foreign students), and crowd out better solutions.
Returning to pre-2011 norms would be better than the status quo. But at this point, an act of Congress might be the only way to stop what one attorney has called the 'regulation by intimidation' that threatens higher education. Congress could clarify what Title IX and Title VI require of colleges, in particular establishing that colleges can never be punished by the administrative state for allowing speech protected by the First Amendment or extending due-process rights to accused students that they would enjoy in a court of law. It could raise the bar for launching an investigation. It could afford colleges more due process before penalties are imposed. And it could silo penalties, so that violations in one part of a university, such as the law school, do not threaten another part, such as a cancer-research center. Many kinds of reform are possible.
It is, in any case, unsustainable for colleges to be micromanaged by rival factions of coercive ideologues. Yet many Trump critics are still focusing on his administration's glaring procedural violations, rather than the enforcement model that underlies them. Even if Trump's team were as procedurally diligent as its predecessors (a low bar), the overly aggressive approach to civil-rights enforcement that began in 2011 and persists today would serve academia ill. Civil-rights enforcement on campuses has mutated into something with costs that outweigh its benefits.