U.S. President Donald Trump’s administration is doing the right thing by pursuing universities and others who fail to protect Jews from assaults and discrimination, but is overplaying its hand at times, according to legal experts who support the president.
“In the Mahmoud Khalil case, they’ve missed 18 layups on how to get this guy deported for things that he has done,” a legal scholar, with specific expertise on Jew-hatred, told JNS of the anti-Israel, former Columbia University student, who was spokesman for antisemitic protests on campus.
“They’ve chosen to take the most extreme view and state that they don’t have to offer evidence,” said the expert, who declined to be named.
A panel in late July hosted by the conservative and libertarian Federalist Society addressed legal mechanisms that could be used more effectively in civil rights suits about Jew-hatred on campus.
“Half the game is to figure out a vehicle for attacking the problem of unregulated antisemitism that we saw in the last year and a half and assessing how each of those remedies works and what its long term impacts are,” Marc Stern, chief legal officer at the American Jewish Committee and a panelist at the event, told JNS.
Contractual agreements, which are being used in litigation against Harvard University, and laws designed to protect abortion clinics, regulate building permits and prosecute the mafia and the Ku Klux Klan were among the subjects discussed on the panel.
Though many see Title VI complaints under the 1964 Civil Rights Act as logical places to start, the panelists said such civil rights complaints don’t meet the current moment and its needs.
“No universities ever lose their federal funding because of Title VI complaints,” Mark Goldfeder, a rabbi and CEO and director of the National Jewish Advocacy Center, said at the event.
The 1964 law addresses institutions, not individual antisemites, according to Goldfeder.
“I cannot speak for the administration, but I imagine that they thought the funding cut off was the quickest and most powerful tactic available to them,” Stern told JNS.
Another panelist, Robert Shibley, special counsel for campus advocacy at the Foundation for Individual Rights and Expression, said Title VI “predates the idea of hostile environment harassment.”
“It is an anti-discrimination law,” he said at the event. “It’s not an anti-harassment law.”
The Trump administration has been trying to pressure Harvard to protect Jews more by canceling research contracts, rather than through Title VI probes, according to Goldfeder. The administration would do better to use carrots than sticks, tying federal funding to compliance benchmarks, he said.
Stern told JNS that even if the Trump administration overplayed its hand by cutting off university funding through Title VI at other universities, “there’s no question that the use of a cutoff or the threat of a funding cut got people to pay attention.”
Even if the funding cut threats don’t hold up in court cases, the administration is “waking up other college administrators, who were hoping they could ride out all the controversy, and eventually, football and beer would take over worrying about Gaza.”
The legal expert who spoke anonymously with JNS said, in Title VI cases, “they could focus specifically on the most egregious actions that clearly don’t have anything to do with speech, that are beyond the pale.”
All of the panelists at the event agreed that there is a need for novel legal approaches.
Goldfeder has been turning to laws like the Antiterrorism Act and the Freedom of Access to Clinic Entrances (FACE) Act, which was passed to allow people to access abortion clinics without being intimidated.
“When it was getting passed in the 1990s, Republicans threw in a paragraph or two to try and get some more votes, which says ‘or houses of religious worship,’” Goldfeder said. “Most people don’t read that far down.”
The law that was intended to protect abortion seekers from being obstructed or intimidated en route to abortion sites came also to criminalize intimidation of those at a “place of religious worship or by the entity that owns or operates such place of religious worship” and destruction of property “of a place of religious worship” or obstructing access and making passages to such sites “unreasonably difficult or hazardous.”
“When you’re dealing with useful idiots, they make useful idiot mistakes like advertising, ‘Hey. Let’s go block a synagogue or a Chabad house or a Hillel house, and they tape themselves” doing so, Goldfeder said.
Goldfeder sued the Palestinian Youth Movement and Code Pink for rioting outside Adas Torah, an Orthodox synagogue in Los Angeles, in June 2024. The case is going to trial.
“These groups really do function like a mafia,” Goldfeder said. He is exploring the possibility of bringing suits under the Racketeer Influenced and Corrupt Organizations (RICO) Act.
“It’s been a long time, but we’re getting, hopefully, closer,” he said.
Marc Greendorfer, co-founder of Zachor Legal Institute, wants to see the U.S. Justice Department use several sections of the U.S. criminal code that deal with conspiracies to deny rights, “which would apply in the situations where you have public universities and the faculty and the staff that are joining with these Hamas protesters.”
“When you conspire to deprive people of their rights to enjoy those benefits of the government, it is a violation of the KKK laws,” Greendorfer said. “We have asked many times for it to be enforced.”
“It’s a very powerful tool,” he said.
A core issue on campuses is that no one has been able to separate protected expression from racial discrimination in a credible way, according to Shibley.
A “cumulative theory of harassment” under Title VI, which would take campus harassment broadly into account, rather than focusing on individual incidents and agitators, could work, according to Shibley.
Greendorfer said regulators use the same kind of theory to identify insider trading, and that potential violations emerge from analysis of all the available information.
Universities can address actionable problems, outside the scope of free speech and expression, in simple ways, according to Shibley, who cited the example of the University of California, Los Angeles.
“We’re talking about a university that allowed people to bring construction materials onto their campus and start hammering them together and build barriers,” he said. “This is Los Angeles. You can’t just go around building things without a permit.”
Stern told attendees that university presidents chose to “look at their belly buttons in effect while all this was going on.”
“It would be a lot easier, for instance, if universities gave you videos of who broke into a building or who blocked people,” he said. “They’re not doing that. You can have all the laws you want. If you can’t get the evidence, you can’t win a case.”
Goldfeder told JNS that lawyers need to keep thinking creatively.
An injunction was handed down in federal court last week in a case in which an anti-Israel activist yanked an Israeli flag off the neck of a Jewish woman, choking and disorienting the latter during a protest.
“We got, I think, the strongest opinion since Oct. 7, saying that this was an outright act of antisemitism, that targeting a Jew for wearing a clearly Jewish sign like the Star of David is antisemitism,” Goldfeder told JNS.
In that instance, the judge based her decision not on the 61-year-old Civil Rights Act, but the nearly 160-year-old Civil Rights Act, which passed after the Civil War in 1866 and sought to eliminate racial violence.
