Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—Crackdown on antisemitism in education is not just limited to students, (Mar 31, 2025)

By Johanna G. Zelman, Rachel Ullrich, Dawn Siler-Nixon and Hannah R. Kramer of Ford & Harrison LLP

Real World Impact: In light of recent government actions directed at ensuring educational institutions protect their faculty and staff, as well as students, from antisemitism, such employers should ensure they are familiar with their obligations under federal law and that they have policies and practices in place to protect their employees and students.

Background

Immediately following the October 7, 2023 Hamas-led attack on Israel that sparked protests and harassment of Jewish students at colleges and universities and a rise in antisemitism at PreK-12 schools, the Office of Civil Rights (OCR) for the United States Department of Education (DOE) took action, opening investigations under Title VI of the Civil Rights Act against public school districts, colleges, and universities across the United States. Title VI prohibits discrimination based on race, color, and national origin, including "shared ancestry and ethic characteristics," in any program or activity receiving federal funds, including nearly all public schools, colleges, and universities.

Subsequently, the Trump Administration also took additional measures to reiterate the importance of protecting students as well as faculty and staff from antisemitism. On January 29, 2025, Executive Order 14188, Additional Measures to Combat Anti-Semitism announced that the Administration would "us[e] all available and appropriate legal tools to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence," specifically focusing on college and university campuses. On February 3, 2025, the Department of Justice issued a press release announcing the formation of a Task Force to Combat Anti-Semitism (Task Force), composed of members of various agencies, including the DOE. On March 10, 2025, the OCR announced it has sent letters to 60 institutions of higher education "warning them of potential enforcement actions if they do not fulfill their obligations under Title VI of the Civil Rights Act to protect Jewish students on campus, including uninterrupted access to campus facilities and educational opportunities."See Press Release, "U.S. Department of Education's Office for Civil Rights Sends Letters to 60 Universities Under Investigation for Antisemitic Discrimination and Harassment." The OCR's press release notes that the Task Force has announced the immediate cancellation of $400 mission in federal grants and contracts to Columbia University due to the school's continued inaction to protect Jewish students from discrimination.

Focus on Educational Institutions' Responsibility to Protect Employees from Antisemitism

Although discrimination against Jewish students has received the most widespread media coverage, public and private PreK-12 schools, colleges, and universities also have an obligation to protect their employees from antisemitism. Last week, EEOC Acting Chair Andrea Lucas reiterated her press release from earlier this month, citing Executive Order 14188, promising to use Title VII of the Civil Rights Act of 1964 to hold colleges and universities accountable for antisemitism directed at their faculty and staff. Unlike Title VI which is limited to "race, color, and national origin," Title VII also prohibits discrimination based on religion, and is specific to prohibiting discrimination and harassment in employment. In her press release, Acting Chair Lucas reminded the audience that educational institutions "are workplaces, too, and large-scale employers." Simultaneously with Acting Chair Lucas' press release, the Task Force launched its own Title VII investigation into one public university for potential race, religion, and national origin discrimination against its Jewish faculty and staff.

These are not the only protections available. For example, public schools and universities must abide by the First Amendment, which not only protects speech, but religion as well. Further, court are increasingly applying 42 U.S.C. §1981, which prohibits race or ethnicity discrimination in the making and enforcement of contracts, such as may exist in an employment relationship or between an enrolled student and their college or university, to claims brought by Jewish litigants.

The Bottom Line

Educational institutions across the board need to act swiftly to ensure compliance with Title VI, Title VII, and all other laws to ensure that Jewish students, faculty, and staff are protected. But, as we have learned over the last 18 months, it can be difficult to discern where the line falls between protecting Jewish people from harassment and discrimination when institutions are also required to ensure free speech and academic freedom. Educational institutions have also struggled to ensure they continue to provide inclusive and diverse workplaces and educational opportunities in light of federal agency efforts targeting "illegal DEI" programs and initiatives.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Johanna G. Zelman, Rachel Ullrich, Dawn Siler-Nixon and Hannah R. Kramer

Ford & Harrison LLP

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