A new analysis in Reason pushes back on a recent report by Amnesty International USA and the ACLU alleging that universities engaged in an illicit crackdown on pro-Palestinian expression after October 7. The author agrees the report has some truth: universities that were historically lax about rule-breaking by other left-wing protesters have often been harsher toward anti-Israel activists. But he argues that this disparate treatment does not make the crackdown unlawful, and that universities should not be forced to stand down because of it.
The piece gives three reasons. First, past failure to punish rule-breakers is not a legal defense to enforcing rules now. Second, the earlier leniency toward, say, climate activists was itself viewpoint discrimination, since universities would likely not have tolerated similar rule-breaking from conservative or anti-abortion protesters. Third, civil rights law may require universities to act when protests create a hostile environment for a protected group, which the author says distinguishes post-October 7 protests from climate protests that broke rules but did not threaten identifiable students.
The author also takes issue with a First Circuit ruling in the MIT case, arguing that the court overlooked the possibility that violent rhetoric, even if protected, can contribute to an intimidating environment that obligates universities to address unprotected conduct. The piece agrees with the report that universities have sometimes treated anti-Israel protesters more harshly than past rule-breakers, but it rejects the claim that this disparate treatment makes the crackdowns unlawful.