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Problems with the New US Civil Rights Commission Report on Antisemitism, Part III

David Bernstein | 10.8.2026 12:55 PM

Part I and Part II.

Perhaps the most wrongheaded analysis in the Report is this:

Because the government may not "conscript private institutions to act as censors by dangling the threat of civil liability for a hostile environment," the First Amendment "'demands substantial deference to a college's decision not to take action against' students who engage in expressive activity on matters of public concern."
In other words, courts must "'defer to colleges' decisions to err on the side of academic freedom.'"

Whereas a grade school's failure to take action against a student who sexually harasses a classmate might well support an inference of deliberate indifference to that harassment—because any reasonable actor would intervene—the same is not true when a university determines how to enforce rules regarding the use of campus spaces in light of its academic mission and competing claims of different groups."

"Expressive activity" is doing far too much work here. Universities have rules against vandalism, harassment, intimidation, and also have time, place,........

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