Amicus Curiae Brief — StandWithUs Center for Legal Justice, et al., Petitioners v. Massachusetts Institute of Technology

No. 25-1404

In the Supreme Court of the United States

__________

STANDWITHUS CENTER FOR LEGAL JUSTICE, ET AL.,

Petitioners,

v.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY,

__________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

__________

BRIEF ON BEHALF OF U.S. SENATORS TED

CRUZ AND RICK SCOTT, AND THE NATIONAL

JEWISH ADVOCACY CENTER, AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

__________

MARK GOLDFEDER

DAVID BENGER

MARC GREENDORFER

Counsel of Record

NATIONAL JEWISH

ADVOCACY CENTER

1954 Airport Road

Suite 1196

Atlanta, GA 30341

(332) 278-1100

Mark@NJACLaw.Org

David@NJACLaw.org

Marc@NJACLaw.org

Counsel for Amici Curiae

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ...................................... II

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY

OF

THE

ARGUMENT

AND

INTRODUCTION ....................................................... 4

ARGUMENT ............................................................... 7

I. The First Circuit Needlessly Decided an Issue

Not Properly Before It and Has Created Crippling

Uncertainty for the Application of Title VI……… 7

II. The Decision Below Adopts Two Rules That,

In Combination, Strip Jewish Students Of Title

VI’s Protection At The Moment They Most Need

It………... ............................................................. 14

III. The “Intent” Element Conflicts With This

Court’s Hostile-Environment Framework, Which

Is Objective And Recipient-Focused. .................. 19

IV. The

“Protected-Speech”

Exemption

Misapplies The First Amendment To A SpendingClause Statute And Conflicts With This Court’s

Precedents. ........................................................... 24

V. This Is A Clean Vehicle In A Wave Of

Recurring, Materially Identical Litigation. ........ 30

CONCLUSION..………………………………………...30

i

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................... 8

Barnes v. Gorman, 536 U.S. 181, 186 (2002) .......... 20

Bell Atlantic Corp. v. 550 U.S. 544 (2007) ................ 8

Bryant v. Indep. Sch. Dist. No. I-38, 334 F.3d 928,

932-34 (10th Cir. 2003). ........................................ 24

Chapman v. Oakland Living Ctr., Inc., 48 F.4th 222,

231 (4th Cir. 2022). ............................................... 18

Cox v. Louisiana, 379 U.S. 536, 545, 551 (1965)..... 22

Cummings v. Premier Rehab Keller, P.L.L.C., 596

U.S. 212, 216 (2022). ......................................... 4, 20

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650

(1999). .....................................................4, 16, 19, 24

Davis Ricketts v. Wake Cty. Pub. Sch. Sys., 125 F.4th

527 (4th Cir. 2025) ................................................ 24

DeJohn v. Temple Univ., 537 F.3d 301, 318 (3d Cir.

2008) ...................................................................... 23

Doe v. Brown Univ., 43 F.4th 195, 208 (1st Cir. 2022)

............................................................................... 18

EEOC v. Nat’l Educ. Ass’n, 422 F.3d 840, 844 (9th Cir.

2005). ..................................................................... 17

Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991).17

Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409

(5th Cir. 2015) ....................................................... 24

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,

277 (1998) ........................................................ 16, 20

Goodman v. Bowdoin Coll., 380 F.3d 33, 43 (1st Cir.

2004 ....................................................................... 18

ii

Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, n.6 (1993)

......................................................................... 16, 19

Jones v. UPS Ground Freight, 683 F.3d 1283, 1297

(11th Cir. 2012). .................................................... 19

Lounds v. Lincare, Inc., 812 F.3d 1208, 1235 (10th

Cir. 2015). .......................................................... 4, 18

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 81, n.15 (1998) ....................................... 4, 16, 17

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

1, 17 (1981))........................................................... 20

R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992) 21

Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 605

F.3d 703, 708, 710 (9th Cir. 2010) ........................ 23

Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217

(3d Cir. 2001). ....................................................... 23

Shaare Tefila Congregation v. Cobb, 481 U.S. 615,

617-18 (1987). .................................................... 5, 12

Snyder v. Phelps, 562 U.S. 443, 448, 451 (2011)..... 22

StandWithUs Center for Legal Justice v. Mass. Inst.

Tech., 158 F.4th 1 (1st Cir. 2025). ........................... 7

StandWithUs Center for Legal Justice v. Mass. Inst.

Tech., 742 F. Supp. 3d 133, 142-143 (D. Mass 2024)

............................................................................. 7, 8

StandWithUs Ctr. for Legal Just. v. Mass. Inst. of

Tech., 165 F.4th 97, 98 (1st Cir. 2026) ............... 5, 9

Stewart v. Evans, 275 F.3d 1126, 1133 (D.C. Cir.

2002). ..................................................................... 19

Texas v. Johnson, 491 U.S. 397, 399, 414 (1989). ... 22

Virginia v. Black, 538 U.S. 343, 363 (2003 ............. 10

Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993)…4, 21

iii

Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655,

665-66 (2d Cir. 2012) .................................................. 4

Rules

SUP. CT. R. 37.2 .......................................................... 1

SUP. CT. R. 37.6 .......................................................... 1

Other Authorities

COMM. ON EDUC. & THE WORKFORCE, U.S. HOUSE OF

REP., REPUBLICAN STAFF REPORT: ANTISEMITISM ON

COLLEGE CAMPUSES EXPOSED (Oct. 31 2024) ......... 7

Exec. Order No. 13899, Combating Anti-Semitism, 84

Fed. Reg. 68779 (Dec. 16, 2019)………….5 13, 14, 15

Marc A. Greendorfer and Vanessa Hites, When Words

Wound:

Pure

Speech

Meets

Federal

Antidiscrimination Law [Publication in the Touro

Law Review forthcoming, 2026]…………………9, 10

Yossi Sheffi, Unsafe at MIT: A Chronicle of a

Campus War on the Jews (2026)…...………………3

iv

INTEREST OF AMICI CURIAE1

Amici are Senators of the United States

Congress who have a strong interest in the

enforcement of Title VI of the Civil Rights Act of 1964,

which prohibits discrimination on the basis of race,

color, or national origin, including discrimination

against Jewish students on the basis of shared

ancestry or ethnic characteristics, in any program or

activity receiving federal financial assistance. As

Senators, amici have participated in the legislative

and appropriations processes that condition federal

funding for higher education on compliance with Title

VI, giving amici an institutional interest in ensuring

that recipient institutions meet the standards

Congress intended.

This brief is led by Senator Ted Cruz,

Chairman of the Senate Judiciary Subcommittee on

Federal Courts, Oversight, Agency Action, and

Federal Rights, whose jurisdiction includes oversight

of federal civil rights enforcement, as well as Senator

Rick Scott, who recently led the passage of a

bipartisan resolution both recognizing Jewish

1 No counsel for any party either (a) authored this brief in whole

or in part or (b) made a monetary contribution intended to fund

the preparation or submission of the brief. See SUP. CT. R. 37.6.

All parties have been timely notified of the filing of this brief

pursuant to SUP. CT. R. 37.2(a).

1

American Heritage Month and condemning

antisemitism. Senators Cruz and Scott have been

particularly vocal on the issue of rising antisemitism,

having worked closely with the American Jewish

community on the matter and sponsored and voted on

resolutions and legislation addressing antisemitism,

especially since the Hamas terror attacks of October

7, 2023. Their degree of engagement gives them

unique insight into the seriousness with which

Congress views the failure of federally funded

universities to protect Jewish students from a hostile

educational environment.

Amici respectfully submit this brief to assist

the Court in its evaluation of the conduct of the

Massachusetts Institute of Technology and to

emphasize the significance of ensuring that

universities receiving federal funds fulfill their

obligations to all students, including Jewish students,

under federal civil rights law.

The National Jewish Advocacy Center

(“NJAC”) is a non-profit legal organization dedicated

to combating antisemitism and advocating for the

rights of Jewish people through legal and public

policy initiatives. NJAC addresses the rising tide of

antisemitism through litigation, advocacy, and

education.

NJAC and the community it serves have a

direct and substantial interest in the questions

2

presented. The decision announces two legal rules—

an “intent” element and a categorical “protectedspeech” exemption—that, in combination, withdraw

the protection of Title VI of the Civil Rights Act of

1964 from Jewish students. NJAC writes to explain,

why these two rules operate uniquely to disable

Jewish Americans from vindicating their federal civil

rights, and why this Court’s intervention is

warranted.

3

SUMMARY OF THE ARGUMENT

AND INTRODUCTION

On October 7, 2023, terrorists from the U.S.designated Foreign Terrorist Organization (“FTO”)

Hamas invaded the sovereign nation of Israel,

slaughtered over 1,200 individuals, wounded

countless others, took numerous hostages, and

subjected those hostages to rape and torture.

By October 8, 2023, a mere one day after the

Hamas attack, organized groups of Hamas supporters

were coordinating across campuses in the United

States, including the campus of the Massachusetts

Institute of Technology (“MIT” or “Respondent”), to

engage in a second-wave campaign to complement

and support Hamas’ slaughter in Israel. These

coordinated campus actions were intended to

whitewash Hamas’ record of terrorism, promote the

narrative that what Hamas did was justified

“resistance,” and silence Jewish students and their

allies. Herein, the campus groups at MIT are referred

to collectively as the “MIT Campus Groups.”

Many accounts document that these university

campaigns were coordinated in advance with Hamas

and other terror organizations. See, e.g., Yossi Sheffi,

Unsafe at MIT: A Chronicle of a Campus War on the

Jews (2026).

The decision below, beset by significant legal

and procedural errors, also adopts two interlocking

4

rules that, taken together, create a Title VI regime

under which Jewish students alone are left without a

remedy.

First, the First Circuit treated the harassers’

subjective discriminatory intent as an element of a

hostile-environment claim. That holding cannot be

reconciled with this Court’s governing framework.

Under that framework, a funding recipient is liable

when it is deliberately indifferent to harassment that

is “so severe, pervasive, and objectively offensive” that

it denies the victim equal access to education. Davis

v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999).

The inquiry is objective and is “judged from the

perspective of a reasonable person in the plaintiff’s

position.” Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 81, n.15 (1998) (citation omitted). It is the

recipient’s conduct, not the harasser’s secret state of

mind, that gives rise to liability. The courts of appeals

have said as much, holding that a harasser’s “purpose

or intent” is “legally immaterial.” Lounds v. Lincare,

Inc., 812 F.3d 1208, 1235 (10th Cir. 2015).

Second, the First Circuit held that speech

which would be protected against direct government

suppression categorically cannot form the basis of a

Title VI claim. That is a fundamental category error.

Title VI is Spending Clause legislation that operates

“much in the nature of a contract.” Cummings v.

Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 216

5

(2022). A university that accepts federal money

voluntarily agrees not to discriminate; the First

Amendment does not excuse a funding recipient from

that bargain, and it has never barred the use of

speech as evidence of discriminatory conduct.

Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993). Other

circuits routinely adjudicate hostile-environment

claims built on slurs, symbols, and other expression

without any such categorical bar. E.g., Zeno v. Pine

Plains Cent. Sch. Dist., 702 F.3d 655, 665-66 (2d Cir.

2012).

Third, the First Circuit made two significant

and prejudicial errors in its decision that, on their

own, warrant this Court’s intervention. The issue

before the District Court was whether the acts and

omissions of an institution subject to Title VI

constituted deliberate indifference under Title VI.

The District Court determined that there was no

deliberate indifference. On appeal, the First Circuit

was asked, in substance, the same question. The

First Circuit affirmed but went well beyond the four

corners of the District Court’s decision, first deciding

a key fact without adhering to the rule that required

the First Circuit to treat Petitioners’ well-pleaded

facts to be true and then deciding the case in a way

that even a First Circuit judge, concurring the denial

of rehearing en banc, argued “… went further than it

ought to have gone to resolve the present dispute.”

StandWithUs Ctr. for Legal Just. v. Mass. Inst. of

6

Tech., 165 F.4th 97, 98 (1st Cir. 2026) (Dunlap, J.,

concurring in the denial of rehearing en banc).

The questions in this case are exceptionally

important and squarely presented. Jews are

indisputably protected by Title VI as a matter of race,

ancestry, and national origin. Shaare Tefila

Congregation v. Cobb, 481 U.S. 615, 617-18 (1987).

The Executive Branch has said so for two decades and

across administrations, including in Executive Order

138992 and in successive guidance from the

Department of Education’s Office for Civil Rights. The

decision below collides with that settled federal

position, and it has already produced conflicting

outcomes in materially identical post-October 7

litigation. The Court should grant review.

ARGUMENT

I.

The First Circuit Needlessly Decided an

Issue Not Properly Before It and Has

Created Crippling Uncertainty for the

Application of Title VI.

The First Circuit characterized what happened

on MIT’s campus as “roughly seven months of

peaceful protests.” That characterization cannot be

2 Exec. Order No. 13899, Combating Anti-Semitism, 84 Fed. Reg.

68779 (Dec. 16, 2019)

7

squared with this record. For months, Jewish

students were harassed, intimidated, and prevented

from obtaining an education by campus mobs openly

calling for the ethnic cleansing of Jews in the Jewish

homeland.

The First Circuit did not merely decide that

protected speech cannot be regulated under Title VI.

It first contradicted the Petitioners’ well-pleaded facts

to conclude, without any support, that the underlying

conduct constituted “peaceful protest” and was

protected by the First Amendment and then opined

on the issue of the interaction of Title VI and the First

Amendment, something that was not at issue in the

appeal or the District Court’s opinion.

In unnecessarily resolving disputed factual

questions, the First Circuit deprived Petitioners of

their right to demonstrate that the protests were far

from peaceful and, instead, as the pleadings

demonstrated, were primarily in the nature of

incitement, true threats, fighting words and

harassment directed at a captive audience, all wellestablished exceptions to the First Amendment.

The District Court’s opinion not only didn’t find

that the MIT Campus Groups’ activities were

peaceful, it described the situation as the campus

being “…embroiled in an internecine conflict that

caused Jewish and Israeli students great anguish…”

and further described the activities as “…an outburst

8

of ugliness….” StandWithUs Center for Legal Justice

v. Mass. Inst. Tech., 742 F. Supp. 3d 133, 142-143 (D.

Mass 2024).

Notwithstanding amicus NJAC having alerted

the court below to the violent and oppressive nature

of the “protests,” the First Circuit chose to ignore

those facts and, contradicting the District Court’s

characterization, deemed the actions of the MIT

Campus Groups as “…roughly seven months of

peaceful protests.” Brief of the National Jewish

Advocacy Center, Inc. as Amicus Curiae in Support of

Appellants, filed on Dec 23, 2024, StandWithUs

Center for Legal Justice v. Mass. Inst. Tech., 158 F.4th

1 (1st Cir. 2025).

The First Circuit’s description also contradicts

the findings in several reports from Congress on the

nature of the post-October 7 campus riots.3 It shows

that the First Circuit ignored the pleadings, where

even MIT did not argue that the protests were

peaceful, and violated the principles of Twombly (Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)) and

Iqbal (Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Second,

3 See COMM. ON EDUC. & THE WORKFORCE, U.S. HOUSE OF REP.,

REPUBLICAN STAFF REPORT: ANTISEMITISM ON COLLEGE

CAMPUSES EXPOSED (Oct. 31 2024) at 39 (the “Committee

Report”),

available

at

https://edworkforce.house.gov/uploadedfiles/10.30.24_committe

e_on_education_and_the_workforce_republican_staff_report__antisemitism_on_college_campuses_exposed.pdf

9

it demonstrates that Petitioners were deprived of

their right to show that the protests were part of a

coordinated campaign, in alignment with FTOs, to

support the nationwide attacks on Jews in university

settings.

Instead, the District Court’s Title VI ruling

focused on the culpability of MIT itself for the actions

of the MIT Campus Groups, confirming that the

environment was far from peaceful but noting that “

… MIT’s evolving and progressively punitive response

largely tracked its increasing awareness of the

hostility that demonstrators directed at Jewish

and Israeli students shows that MIT did not react

in a clearly unreasonable manner.” 742 F. Supp. 3d at

142 (emphasis added).

This was in the context of the deliberate

indifference claim, and whether MIT acted with

deliberate indifference was the only Title VI issue

that the First Circuit’s ruling should have addressed.

It may well be the case that, as the District

Court found, MIT’s failure to respond to the MIT

Campus Groups’ activities did not rise to the level of

deliberate indifference under Title VI. But before

deciding this question, the First Circuit raised its own

threshold issue as to a question that was not at issue:

Were the activities of the MIT Campus Groups

protected expression under the First Amendment and

thus outside the reach of Title VI?

10

By interjecting this premature legal question

and concluding that the protests were entirely within

the protections afforded by the First Amendment,

which precluded the application of Title VI, the First

Circuit went far afield in its inquiry and, without the

benefit of having the matter subject to the entire

judicial process from the District Court proceedings

onwards, created new law that is at odds with

Supreme Court First Amendment precedent.

When the Respondents sought an en banc

rehearing at the First Circuit, Judge Dunlap

acknowledge this problem in his concurring opinion,

stating, “In my view, the panel went further than it

ought to have gone to resolve the present dispute ….

the panel should have chosen the same route as the

trial court and resolved the case solely on this

narrower ground.” StandWithUs, 165 F.4th at 98-102

(Dunlap, J., concurring in the denial of rehearing)

(citation omitted).

What Judge Dunlap’s concurring opinion

misstated, though, is that the First Circuit did not

consider whether “speech not protected by the First

Amendment could give rise to liability under [Title

VI].” In fact, the First Circuit’s opinion never touched

on the question of whether the MIT Campus Groups’

speech was incitement, fighting words, and

harassment directed at a captive audience, all

exceptions to the First Amendment. At best, it

11

discussed whether racist speech was punishable

under Title VI, but it did not examine whether the

racist speech in this case could also have been

considered incitement or fighting words, which are

clear exceptions to the First Amendment. See Marc A.

Greendorfer and Vanessa Hites, When Words Wound:

Pure Speech Meets Federal Antidiscrimination Law

[Publication in the Touro Law Review forthcoming,

2026].

As in Virginia v. Black, where the Court upheld

a law prohibiting the burning of crosses with the

intent to intimidate, the issue here is whether the

expression of the MIT Campus Groups was meant to

unlawfully intimidate or harass Jewish students on

the MIT campus, where Hamas flags, slogans, and

related expression took the place of burning crosses

as a means to intimidate Jewish students and faculty

at MIT. 538 U.S. 343, 363 (2003). As amicus NJAC

explained in its brief at the First Circuit, Jews on the

MIT campus had just witnessed the worst slaughter

of Jews since the Holocaust and the MIT Campus

Groups were not only celebrating, they were directing

the exact symbols and words of the killers at Jewish

students and faculty.

This is equivalent to the scenario in Black, yet

it was not only dismissed by the First Circuit, factual

inquiry into the intentional campaign to intimidate

and terrorize Jewish students at MIT was foreclosed

12

by the baseless conclusion that the protests were

peaceful.

All of this would have been moot had the First

Circuit ruled narrowly on the deliberate indifference

issue, as observed by Judge Dunlap. The First

Circuit’s overbroad decision, which dismissed

concerns under Black while it wrongfully found that

the MIT Campus Groups were “peaceful,” effectively

overrules Black while rendering Title VI

unenforceable in many situations where it was meant

to apply.

Just as one example, if a group were to start a

campaign at the MIT campus next year, where the

goal was to intimidate black students under the guise

of advocating for a white-only nation, and they

regularly confronted black students with nooses and

burning crosses and chants that America must be rid

of blacks from sea to shining sea, and MIT allowed

this conduct to occur for months, how could the First

Circuit’s decision stand for anything other than what

it stood for in the instance case? Title VI would

become dead letter.

There was no need for the First Circuit to opine

on an issue that was outside of the questions

presented, thus creating new law that will have the

effect of eliminating established exceptions to the

First Amendment in Title VI cases. Nonetheless, it

13

did so, providing this Court with the foregoing, as well

as the following reasons, to grant the petition.

II.

The Decision Below Adopts Two Rules

That, In Combination, Strip Jewish

Students Of Title VI’s Protection At The

Moment They Most Need It.

A.

Antisemitism Is History’s Most

Adaptive Hatred, And Its Defining

Trait Is Mutation—From Religious,

To Racial, To Political.

To see why the rules below fall uniquely on

Jews, the Court must first understand how

antisemitism works. Often called the world’s oldest

hatred, antisemitism has endured for two millennia

because of a singular characteristic: it mutates. In

every era, it adopts the dominant moral vocabulary of

the day and pours into that new vessel the same

ancient libel: that Jews are a malign and alien power

secretly responsible for society’s misfortunes. The

accusation is constant; only its idiom changes.

For much of Western history, the idiom was

religious. Jews were charged with deicide, accused in

the blood libel of ritual murder, blamed for plagues,

and subjected to forced conversions, ghettos, and

expulsions. In the nineteenth and twentieth

centuries, the idiom became racial and pseudo14

scientific: antisemites recast the Jew not as an

adherent of a disfavored faith but as a member of a

separate and dangerous race, a conception that

culminated in the Holocaust. That racial framing was

not foreign to American law. As this Court has

recognized,

nineteenth-century

Americans

understood Jews to be a distinct race, which is

precisely why Jews remain protected against racial

discrimination under the Reconstruction statutes

today. Shaare Tefila, 481 U.S. at 617-18.

Today, the idiom is frequently political. The

same conspiratorial charge (that Jews are collectively

powerful, disloyal, and culpable) now reappears in the

vocabulary of geopolitics, recoded as rhetoric about

Israel, “Zionists,” and a supposed worldwide Jewish

lobby. The International Holocaust Remembrance

Alliance (“IHRA”) working definition captures both

the continuity and the modern mutation. It defines

antisemitism as “a certain perception of Jews, which

may be expressed as hatred toward Jews.”4 The

definition explains that the age-old trope persists:

antisemitism “frequently charges Jews with

conspiring to harm humanity, and it is often used to

blame Jews for ‘why things go wrong.’” Id. And its

4 Int’l Holocaust Remembrance Alliance, Working Definition of

Antisemitism

(https://holocaustremembrance.com/resources/workingdefinition-antisemitism); see also U.S. Dep’t of State, Defining

Antisemitism (https://www.state.gov/defining-antisemitism).

15

contemporary examples expressly include political

forms—“[h]olding Jews collectively responsible for

actions of the state of Israel” and “[d]rawing

comparisons of contemporary Israeli policy to that of

the Nazis.” Id.

Critically, the IHRA framework does not treat

all criticism of Israel as antisemitic, and neither do

amici. The definition is explicit that “criticism of

Israel similar to that leveled against any other

country cannot be regarded as antisemitic.” Id. That

is the right line, and it confirms the proper inquiry:

whether particular conduct, in its full context, targets

Jews because they are Jews or instead voices a

genuine political critique of a foreign state. The

Executive Branch has embraced exactly this

framework, directing federal agencies enforcing Title

VI to consider the IHRA definition and its examples

when evaluating antisemitic discrimination. Exec.

Order No. 13899.

This mutability is the key to the questions

presented. Because antisemitism so readily borrows a

respectable idiom,

the hardest and

most

consequential cases are precisely those in which

bigotry is delivered through words that can be

characterized as political. A legal regime that is blind

to that dynamic—one that demands proof of conscious

bigoted purpose and simultaneously excludes the

harasser’s expression from the analysis—does not

16

protect Jews. It protects their harassers. The next two

sections explain why.

B.

Because

Modern

Antisemitism

Disguises Itself, A Subjective-Intent

Element Functions As A License To

Harass Jews.

The harasser who would never concede animus

against “Jews” will readily insist that he was merely

“criticizing Israel,” “opposing Zionism,” or “engaging

in political protest.” That is the recurring grammar of

contemporary campus antisemitism. A subjectiveintent element rewards exactly this evasion. If a

Jewish plaintiff must plead and prove that her

harassers acted with a conscious, bigoted purpose,

then the more skilled the bigot is at cloaking his

motive in politics, the more complete his immunity.

The

rule

perversely

protects

sophisticated

antisemitism while leaving actionable only the

crudest and rarest admissions of hatred.

No other protected group is asked to litigate its

tormentors’ inner life as the price of admission to

court; a Black student subjected to a noose, or a

Latina student subjected to slurs, need not prove that

the perpetrators harbored a particular state of mind

beyond that the conduct was directed at her because

of who she is. The federal government has recognized

this dynamic. Executive Order 13899 directs every

17

agency enforcing Title VI to consider the IHRA

definition and its contemporary examples “to the

extent that any examples might be useful as evidence

of discriminatory intent.” Exec. Order No. 13899. The

Order treats expression as evidence of how

harassment should be understood—not as a

categorical safe harbor for the harasser. The decision

below inverts that approach.

C.

A Categorical “Protected-Speech”

Exemption Compounds The Error,

Because Antisemitic Harassment Is

Overwhelmingly Expressive.

The First Circuit’s second rule deepens the

injury. Harassment of Jews is frequently delivered

through words and symbols—chants, signs, slogans,

social-media posts, and confrontations. If all

expression that would be shielded from direct

government censorship is also categorically excluded

from the Title VI calculus, then the principal vehicle

of antisemitic harassment is removed from the

analysis before it begins. The hostile-environment

inquiry is gutted in precisely the cases where Jewish

students are most affected.

The two rules thus operate as a one-two punch

unique to this form of bigotry. Rule one says the

plaintiff must prove the harasser’s discriminatory

intent. Rule two says the plaintiff may not rely on the

18

harasser’s words to do it. The result is a Title VI that

protects Jewish students in theory and almost never

in practice. That is not what Congress enacted, and it

is not what this Court’s precedents permit.

III.

The “Intent” Element Conflicts With This

Court’s Hostile-Environment Framework,

Which Is Objective And RecipientFocused.

This Court’s hostile-environment doctrine fixes

liability on two things, neither of which is the

harasser’s private intent. The first is the objective

character and effect of the conduct. A recipient is

liable only for harassment that is “so severe,

pervasive, and objectively offensive” that it deprives

the victim “of access to the educational opportunities

or benefits provided by the school.” Davis, 526 U.S. at

650. The severity of harassment “should be judged

from the perspective of a reasonable person in the

plaintiff’s

position,

considering

all

the

circumstances.” Oncale, 523 U.S. at 81, n.15 (citation

omitted). And the environment is actionable so long

as it “would reasonably be perceived, and is perceived,

as hostile or abusive,” without any further showing of

the perpetrator’s psychology. Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 22, n.6 (1993) (citation omitted).

The second locus of liability is the funding

recipient’s own response. A recipient is answerable in

19

damages where “an official who at a minimum has

authority to institute corrective measures on the

recipient’s behalf has actual notice of, and is

deliberately indifferent to,” the misconduct. Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998).

Nothing in Davis or Gebser makes the harasser’s

subjective animus a freestanding element; the

statutory wrong is the institution’s deliberate

indifference to objectively offensive, access-denying

harassment. The First Circuit’s contrary rule grafts

onto Title VI an element this Court has never

recognized.

The intent element also misreads Title VI’s

operative

language.

The

statute

reaches

discrimination “on the ground of race, color, or

national origin.” That is causal language. As this

Court has explained in the cognate Title VII context,

the statute “is directed only at discriminat[ion] …

because of … sex,” Oncale, 523 U.S. at 80, n.7—a

connection between the protected trait and the harm,

not proof of a malevolent heart.

The first question presented turns on a real

and acknowledged conflict among the courts of

appeals, which the petition documents in detail. See

Pet. 15-20. The decision below deepens that conflict

and lands the First Circuit on the minority side.

20

The majority anchors liability in objective

effect, not subjective intent. The Ninth Circuit has

held expressly that harassment plaintiffs “do not need

to prove that [the harasser] had a specific intent to

discriminate,” because antidiscrimination law “is

aimed at the consequences or effects of an

employment practice and not at the … motivation of

co-workers or employers.” EEOC v. Nat’l Educ. Ass’n,

422 F.3d 840, 844 (9th Cir. 2005). Its foundational

decision in Ellison v. Brady adopted a reasonablevictim standard that “classifies conduct as unlawful

… harassment even when harassers do not realize

that their conduct creates a hostile working

environment,” so that even “[w]ell-intentioned”

conduct can be actionable if objectively severe or

pervasive. 924 F.2d 872, 880 (9th Cir. 1991). The

Tenth Circuit agrees that “whether the alleged

harasser’s purpose or intent was to do harm … is

legally immaterial.” Lounds, 812 F.3d at 1235. So

does the Fourth Circuit, which held that racial slurs

supported a claim even where the speaker “lacked

intent to harm,” because “it matters not if the boy was

too young to understand the force of his words.”

Chapman v. Oakland Living Ctr., Inc., 48 F.4th 222,

231 (4th Cir. 2022).

The First Circuit requires discriminatory

intent and carried that requirement into the hostileenvironment setting. The First Circuit treats “racial

animus” as “a necessary component” of a Title VI

21

claim and demands proof that the defendant acted

with discriminatory intent. Goodman v. Bowdoin

Coll., 380 F.3d 33, 43 (1st Cir. 2004); accord Doe v.

Brown Univ., 43 F.4th 195, 208 (1st Cir. 2022). In the

decision below, the panel carried that intent

requirement into the hostile-environment context,

treating the protestors’ expression as non-actionable

because it was not shown to be motivated by

antisemitic purpose. The petition identifies additional

circuits that likewise treat discriminatory intent or

animus as an element of harassment liability. See

Pet. 15-20.

The other decisions on the intent-required side,

read carefully, demand a causal “because of”

connection—not proof of malice. The petition also

identifies the Eleventh and D.C. Circuits among the

courts treating discriminatory intent or animus as

part of the harassment inquiry. See Pet. 18. Properly

understood, however, those decisions require that the

challenged conduct be “based on” the protected trait

(a causation requirement) rather than separate proof

of the harasser’s subjective bigoted purpose. The

Eleventh Circuit has held that “only conduct that is

‘based on’ a protected category, such as race, may be

considered in a hostile work environment analysis,”

so that “[i]nnocuous statements or conduct, or boorish

ones that do not relate to the [race] of the actor or of

the offended party (the plaintiff), are not counted.”

Jones v. UPS Ground Freight, 683 F.3d 1283, 1297

22

(11th Cir. 2012). And the D.C. Circuit, adopting and

appending the district court’s opinion, rejected a

hostile-environment claim where a profane tirade

could not “reasonably be construed as having any

sexual connotation or having been motivated by a

discriminatory animus.” Stewart v. Evans, 275 F.3d

1126, 1133 (D.C. Cir. 2002). Read on their own terms,

these cases illustrate the very distinction petitioner

presses: the operative question is whether the conduct

occurred because of the protected characteristic, not

whether the harasser harbored conscious malice. To

the extent any court, like the First Circuit below, has

converted that modest causation requirement into a

freestanding subjective-intent element, it has

compounded rather than cured the confusion that

warrants this Court’s review.

The conflict is squarely presented and

outcome-determinative. In a case like this one, the

presence or absence of a subjective-intent element

decides the outcome at the pleading stage. And the

stakes are gravest for Jewish plaintiffs: as Part I

explains, antisemitic harassment is uniquely apt to be

cloaked in political motive, so an intent element does

not merely raise the bar, it removes the floor. This

Court should grant review to resolve the split and to

restore the objective, effects-based standard Davis

and Harris require.

23

IV.

The

“Protected-Speech”

Exemption

Misapplies The First Amendment To A

Spending-Clause Statute And Conflicts

With This Court’s Precedents.

A.

Title VI Is A Contract, And MIT

Voluntarily

Accepted

The

Nondiscrimination Condition.

The First Circuit treated Title VI as though it

were a direct government prohibition on speech, to be

measured against the doctrines that govern sovereign

censorship. But Title VI does not command anyone to

do anything. It is Spending Clause legislation that

operates “much in the nature of a contract: in return

for federal funds, the [recipients] agree to comply with

federally imposed conditions.” Cummings, 596 U.S. at

216 (quoting Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1, 17 (1981)). Title VI works “by

conditioning an offer of federal funding on a promise

by the recipient not to discriminate, in what amounts

essentially to a contract between the Government and

the recipient of funds.” Gebser, 524 U.S. at 286; accord

Barnes v. Gorman, 536 U.S. 181, 186 (2002).

MIT was free to decline federal money. It did

not. Having accepted the funds, it accepted the

condition: that it not allow its programs to become an

instrument of discrimination against its students on

the basis of race, ancestry, or national origin.

Enforcing that voluntarily assumed obligation no

24

more violates MIT’s First Amendment rights than

enforcing any other condition a recipient agrees to in

exchange for federal support. The decision below

would let a university pocket federal funds while

disclaiming the nondiscrimination promise that is the

price of those funds—precisely the result the contract

framework forecloses.

B.

The First Amendment Does Not

Immunize

A

Recipient’s

Discriminatory

Conduct,

And

Speech May Be Evidence Of

Discrimination.

Even on its own terms, the First Amendment

supplies no categorical exemption. This Court has

squarely held that “the First Amendment … does not

prohibit the evidentiary use of speech to establish the

elements of a crime or to prove motive or intent.”

Mitchell, 508 U.S. at 489. Indeed, “motive plays the

same role” under antidiscrimination laws “which we

have previously upheld against constitutional

challenge.” Id. at 487. And in R.A.V., the Court

confirmed that general antidiscrimination law may

reach expressive harassment: “sexually derogatory

‘fighting words’ … may produce a violation of Title

VII’s

general

prohibition

against

sexual

discrimination in employment practices,” because

“[w]here the government does not target conduct on

25

the basis of its expressive content, acts are not

shielded from regulation merely because they express

a discriminatory idea or philosophy.” R.A.V. v. City of

St. Paul, 505 U.S. 377, 390 (1992).

C.

The Circuits Are Divided Over The

Role Of Protected Speech In

Harassment Claims, And The First

Circuit Has Adopted The Most

Extreme

Position

On

That

Spectrum.

The second question presented does not arise

in a vacuum. The courts of appeals have wrestled for

two decades with the relationship between the First

Amendment and harassment liability, and they have

arrived at materially different answers. The decision

below sits at the far end of that spectrum, and its

outlier status is itself a reason for review.

The authority on which the panel relied does

not support its rule. To hold that protected speech

categorically cannot support a Title VI claim, the

First Circuit drew on this Court’s decisions in Snyder

v. Phelps, Texas v. Johnson, and Cox v. Louisiana. See

Pet. 22-23. But each of those cases concerned the

government acting as sovereign to punish

expression—not a federal funding recipient enforcing

a condition it voluntarily accepted. Snyder asked

“whether the First Amendment shields the church

26

members from tort liability for their speech,” and held

only that state tort damages could not be imposed for

picketing on public issues. 562 U.S. 443, 448, 451

(2011). Johnson reviewed a criminal “conviction” for

flag burning and held that “the government may not

prohibit the expression of an idea simply because

society finds the idea itself offensive or disagreeable.”

491 U.S. 397, 399, 414 (1989). And Cox reversed a

criminal conviction for “disturbing the peace,”

reaffirming that “constitutional rights may not be

denied simply because of hostility to their assertion or

exercise.” 379 U.S. 536, 545, 551 (1965). None

involved a Spending Clause statute, a funding

condition, or a recipient’s contractual promise not to

discriminate. The panel transplanted sovereignsuppression doctrine into a contractual setting where

it does not belong.

The circuits most protective of campus speech

still refuse to adopt a categorical bar. The decisions

that come closest to the First Circuit’s position stop

well short of it. The Ninth Circuit “doubt[ed] that a

college professor’s expression on a matter of public

concern, directed to the college community, could ever

constitute unlawful harassment,” reasoning that “the

government may not silence speech because the ideas

it promotes are thought to be offensive.” Rodriguez v.

Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703, 708,

710 (9th Cir. 2010) (citations omitted). The Third

Circuit has twice invalidated overbroad university

27

harassment policies on First Amendment grounds,

warning that without “a showing of severity or

pervasiveness,” such a policy “provides no shelter for

core protected speech.” DeJohn v. Temple Univ., 537

F.3d 301, 318 (3d Cir. 2008); Saxe v. State Coll. Area

Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001). Yet even

these speech-protective courts have expressly

disavowed the categorical rule the First Circuit

adopted. Saxe holds in terms that “[t]here is no

categorical ‘harassment exception’ to the First

Amendment’s free speech clause,” 240 F.3d at 204,

and Rodriguez itself quotes that proposition, 605 F.3d

at 708. Rodriguez further confined its protection to

“pure speech” on public issues addressed to the

community at large, distinguishing “targeted” insults

and conduct with “non-expressive qualities.” 605 F.3d

at 710. These courts engage in a fact-sensitive, asapplied inquiry; they do not bar harassment claims as

a class at the pleading stage.

The circuits adjudicating Title VI harassment

claims weigh expression as evidence, without any

categorical bar. On the other side of the divide, the

courts that have actually applied Title VI and Title IX

to expressive harassment treat words and symbols as

part of the Davis inquiry, not as a pleading-stage

shield. The Tenth Circuit allowed a Title VI claim to

proceed on allegations of “racial slurs, graffiti,” and

student displays of “swastikas, KKK symbols, and

hangman

nooses,”

holding

that

“deliberate

28

indifference to known instances of student-on-student

racial harassment is a viable theory in a Title VI

intentional discrimination suit.” Bryant v. Indep. Sch.

Dist. No. I-38, 334 F.3d 928, 932-34 (10th Cir. 2003).

The Second Circuit sustained Title VI liability for

deliberate indifference to racial slurs and a noose

threat, explaining that “[e]ducational benefits include

an academic environment free from racial hostility.”

Zeno, 702 F.3d at 665-66. The Fifth Circuit adopted

the Davis framework and observed that “the use of a

noose accompanied by a vitriolic and epithet-laden

note only underscores the severe, pervasive, and

objectively offensive nature of the harassment.”

Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409

(5th Cir. 2015). And just last year, the Fourth Circuit

reversed a Rule 12 dismissal, treating mocking,

racialized expression as hostile-environment evidence

under Davis Ricketts v. Wake Cty. Pub. Sch. Sys., 125

F.4th 527 (4th Cir. 2025)

The First Circuit stands alone. The upshot is a

genuine and consequential split. Some circuits

zealously protect campus speech; others treat

expression as ordinary evidence in the Davis analysis.

But no circuit before the decision below had converted

First Amendment solicitude into a categorical,

pleading-stage immunity that defeats a Title VI claim

at the threshold whenever the harassing conduct

takes expressive form.

29

V.

This Is A Clean Vehicle In A Wave Of

Recurring,

Materially

Identical

Litigation.

The questions arise constantly, and they are

dividing the lower courts even within a single district

on near-identical facts. Because the First Circuit

resolved both questions as a matter of law at the

pleading stage, the issues are presented cleanly, on

the face of the complaint, without any need for factual

development. The recurring national importance of

the questions, the developing conflict, and the clean

posture all counsel in favor of review.

CONCLUSION

For the above reasons, the petition for

certiorari should be granted.

30

Respectfully submitted,

MARK GOLDFEDER

DAVID J. BENGER

MARC A. GREENDORFER

COUNSEL OF RECORD

NATIONAL JEWISH

ADVOCACY CENTER

1954 AIRPORT ROAD,

SUITE 1196

ATLANTA, GA 30341

(332) 278-1100

MARK@NJACLAW.ORG

DAVID@NJACLAW.ORG

MARC@NJACLAW.ORG

JULY 22, 2026

COUNSEL FOR AMICI CURIAE

31