Student Protests and “Fighting Words”: Critical Race Theory and the Evolution of Hate Speech Codes on College Campuses

Authors

Mark C. Niles, St. John's University School of LawFollow

Document Type

Article

Publication Title

Albany Law Review

Publication Date

2025

Volume

88

First Page

1

Abstract

Devastating Hamas attacks on Israeli civilians and military personnel in October 2023, and the Israeli military response to those attacks in Gaza, have given rise to protests around the world, notably on college campuses in the United States. These protests (on more than fifty campuses in all parts of the country) have in turn generated multiple allegations of antisemitic statements and conduct by protestors. Many high-profile university donors and board members, portions of the media, and some elected officials responded to these allegations by identifying perceived deficiencies in campus administrative responses to these complaints and to calls for more robust action to support and protect students who were harmed by it. This advocacy reached a kind of crescendo with congressional hearings calling presidents of the nation’s most prestigious universities to task for their inaction, leading to calls that these leaders resign their positions. In subsequent months, the Trump administration’s Departments of Education and Justice announced investigations against and cancelation of federal grants to numerous universities, including Harvard and Columbia, based on the administration’s conclusion that they had failed to properly protect students from antisemitic hate speech and harassment.

This Article uses these calls for more robust regulation of hate speech on campus as the foundation for a discussion of how college campuses in the United States actually do regulate student and other campus speech, and how prohibitions on hate speech have evolved over the past several decades. It begins with a focus on the earliest advocacy for regulation of racist and other class-defined hate speech from the scholars who would go on to found the Critical Race Theory (CRT) movement. These scholars acknowledged the importance of broad protections of freedom of expression to ensure a vibrant and just community. However, they questioned whether the legal and theoretical justifications for absolutist protections of speech took sufficient account of the harm that antisemitic and racist hate speech caused to people of color and members of other marginalized and traditionally subordinated groups, and of the importance of other constitutional values, including anti-discrimination. This Article summarizes the rejection of these mainstream arguments by foundational CRT scholars Richard Delgado, Mari Matsuda, and Charles Lawrence III, who advocated for specific hate speech regulation on college campuses. It also discusses how Lawrence’s work influenced the development and expansion of campus hate speech regulations in the late 1980s and 1990s. It then surveys the judicial response to these regulations and their continued evolution to the present day. The Article concludes with an application of these CRT-inspired hate speech regulations to a range of alleged speech and conduct associated with the Gaza protests to determine which would be prohibited under these codes, and which might be categorized instead as protected speech.

[R]egulation of certain face-to-face racial vilification may be justified under current [F]irst [A]mendment doctrine as an analogy to the protection of certain classes of captive audiences on university campuses. . . . We must be as attentive to the achievement of the constitutional ideal of equality as we are to the ideal of untrammeled expression. There can be no true free speech where there are still masters and slaves.

[While a] university may properly decide to inculcate in students a belief in racial equality, . . . [it might not necessarily] punish a student for sending an e- mail message disparaging students of color. . . . [P]ublic college and secondary school students have a right to dissent, agitate, protest, and organize, even if the messages they seek to communicate are antithetical to the beliefs the educational institutions seek to inculcate.

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Available at: https://www.albanylawreview.org/article/145204