Document Type

Article

Publication Date

7-2026

Abstract

Universities learned hard lessons in the months after Hamas attacked Israel on October 7. 2023. This painful and challenging time highlighted the urgent need to pursue two critical goals, which sometimes are in tension with each other. First, universities have to protect academic freedom and free expression. This is their life blood. Second, universities also have to honor their legal and moral obligation to combat discrimination, including antisemitism.

Yet this is easier said than done. Protecting free expression means allowing speech that is controversial and even offensive. But this speech can contribute to a hostile environment. So, in seeking both to combat discrimination and to protect free expression, universities need to strike the right balance.

There are different ways to do this. In general, I would protect free expression as much as possible, limiting it only as needed to comply with antidiscrimination laws. To do so, I generally would follow the First Amendment, even at private universities where it does not apply. But reasonable minds can disagree about how to strike the balance between free expression and antidiscrimination. The goal of this Essay is not to make the case for following the First Amendment or for any other specific balance.

Rather, this Essay makes a narrower point: whatever balance universities choose to strike in protecting expression and combatting discrimination, they must be consistent. The protections for Jewish and Israeli students and faculty must be the same as the protections for Black, Latino, Asian, Palestinian, female, and LGBTQ+ students and faculty. The rules need to be the same for everyone. If a university takes a step to shield Black or female students from harassment, the university needs to take a comparable step to protect Jewish and Israeli students, and vice versa.

Disciplines

Civil Rights and Discrimination | Constitutional Law | Law

Comments

Creighton University Law Review, “Free Expression and Civil Rights on Campus: Consistency and the Kant-Rawls Heuristic” published in Vol. 59, Issue 3 (2026), pp. 417-430, reprinted with permission. Copyright © 2026 by Creighton University.

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