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To govern is to make difficult decisions, and to govern under the rule of law is to make difficult distinctions about where, how, and to what extent the law applies. In the United States, we have a civil rights regime that developed in the mid-twentieth century to advance the national interest in rooting out invidious discrimination. Our civil rights law requires those who wield it to make careful distinctions, especially where civil rights law collides with the freedom of speech, the equal protection of the laws, and other equally sacrosanct national commitments.
Moreover, applying our civil rights law—especially Title VI of the Civil Rights Act, which prohibits various forms of discrimination in institutions receiving federal support—requires the executive agencies tasked with enforcing it to examine the facts, often including speech and expression, which gave rise to a discrimination complaint. In rare circumstances, universities (most of which receive federal funding, and which have been the subject of the most scrutiny) may have policies that amount to improper discrimination. But civil rights officials spend most of their time focusing on de facto discrimination; speech and actions that evince an unwelcoming environment for members of minority groups. They have issued regulations that implement Title VI by requiring institutions to police themselves accordingly. (Disparate impact, the legal theory that takes this a step further by inferring discrimination from group disparities, is no longer operative.) That means some content-based regulations will take shape: Perhaps professors cannot teach classes on the inferiority of certain races, and universities cannot allow student groups to tromp around the quad chanting “death to all [n-word]s!” The First Amendment would likely protect both, and an unfettered view of free speech would permit them; an uncontroversial application of civil rights law would not.
Continue reading the entire piece here at Law & Liberty
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Tal Fortgang is an adjunct fellow at the Manhattan Institute. He was a 2023 Sapir Fellow
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