A public university may be able to defend its refusal to ban protected speech under its own First Amendment obligations. A private university can also claim to be acting in the spirit of the First Amendment, but such a claim might not constitute a complete defense to a breach of contract suit that alleges that a private university ignored its obligation to its students to provide a safe environment.

There are no binding precedents on these complex issues, and the courts will have to balance conflicting rights — to free speech and to a safe environment. Universities will not be able to defend against the claim that it is applying a double standard to Jews as contrasted with other minorities.

It is crystal clear that such a double standard exists at most universities. No university would tolerate a Ku Klux Klan club that publicly stated that, say, the lynching of African Americans was justified. Nor would it tolerate public statements that gay or transgender students who were attacked deserved it because of their lifestyles.

These are all examples of constitutionally protected speech that no university would tolerate. Yet Harvard refused to condemn student groups that published letters blaming the Hamas atrocities of October 7 “entirely” on Israel. Other universities have remained silent in the face of rabidly antisemitic posters such as the one demanding that the world be “clean” of Jews.

[I’m more inclined to the First Amendment defense in these cases, *except* that the Left has kept expanding regulatory actions at the Department of Education to penalize other speech and dissent from progressive orthodoxy, especially regarding Title IX. A little sauce for the gander seems appropriate here, but I worry that it would also escalate an erosion of the right to free speech. If the lawsuits focus on specific threats and acts of overt intimidation and assault, and administration inaction resulting thereof, then I’ll cheer these lawsuits to the end. — Ed]