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

Supreme Court briefAug 26, 2026

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No. 25-1404

IN THE

Supreme Court of the United States

_________

STANDWITHUS CENTER FOR LEGAL JUSTICE;

KATERINA BOUKIN; MARILYN MEYERS,

Petitioners,

MASSACHUSETTS INSTITUTE OF TECHNOLOGY,

Respondent.

________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

________

BRIEF IN OPPOSITION

________

SIMON A. DE CARVALHO

JENNER & BLOCK LLP

353 North Clark Street

Chicago, IL 60654

(312) 222-9350

ADAM G. UNIKOWSKY

Counsel of Record

ISHAN K. BHABHA

LAUREN J. HARTZ

JENNER & BLOCK LLP

1099 New York Avenue, NW

Suite 900

Washington, DC 20001

(202) 639-6000

aunikowsky@jenner.com

QUESTION PRESENTED

Petitioners are two individuals and an organization

who allege that protests on MIT’s campus following the

October 7, 2023 terrorist attacks created an

environment hostile to Jewish and Israeli students, and

that MIT was deliberately indifferent to that hostile

environment in violation of Title VI of the Civil Rights

Act of 1964. The district court dismissed the complaint,

finding that petitioners failed to plausibly allege MIT’s

deliberate indifference. The First Circuit canvassed the

complaint’s allegations and affirmed its dismissal on two

independent grounds: First, it held that petitioners had

not plausibly alleged conduct amounting to an actionable

hostile environment on the ground of race, color, or

national origin. Second, and in the alternative, it agreed

with the district court that petitioners had not plausibly

alleged that MIT acted with deliberate indifference.

Petitioners do not challenge the court’s holding

regarding deliberate indifference.

The question presented is:

Whether the First Circuit correctly concluded, based

on the particular allegations in petitioners’ complaint,

that petitioners failed to allege an actionable hostile

environment, and whether that question warrants

review when the First Circuit rejected petitioners’ claim

on a separate, independently sufficient ground.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................... i

TABLE OF AUTHORITIES ..........................................iv

INTRODUCTION .............................................................. 1

STATEMENT OF THE CASE ........................................ 6

Factual Background .......................................... 6

Proceedings Below .......................................... 10

REASONS FOR DENYING THE PETITION .......... 14

The Court Should Deny Review Because

the First Circuit’s Deliberate-Indifference

Holding Is Independently Sufficient to

Support the Judgment. ............................................ 15

II.

On the First Circuit’s Hostile-Environment

Holding, This Case Is Fact-Bound, Does Not

Implicate Any Split of Authority, and Suffers

from Serious Vehicle Problems. ............................. 18

Petitioners’ first question presented does

not merit review. ............................................. 19

Petitioners’ second question presented

does not merit review. .................................... 29

iii

III. Adopting Petitioners’ Arguments Would

Result in Suppression of Political Speech on

University Campuses. ............................................. 35

CONCLUSION ................................................................. 37

TABLE OF AUTHORITIES

CASES

Adams v. Demopolis City Schools, 80 F.4th

1259 (11th Cir. 2023) ............................................... 18

Alexander v. Sandoval, 532 U.S. 275 (2001) ....... 22, 24

Alfano v. Costello, 294 F.3d 365 (2d Cir.

2002) .......................................................................... 28

Bell v. Baptist Health, 60 F.4th 1198 (8th

Cir. 2023) .................................................................. 27

Boyer-Liberto v. Fontainebleau Corp., 786

F.3d 264 (4th Cir. 2015) (en banc) ......................... 25

Bryant v. Independent School District No.

I-38 of Garvin County, 334 F.3d 928

(10th Cir. 2003) ........................................................ 34

Chapman v. Oakland Living Center, Inc.,

48 F.4th 222 (4th Cir. 2022) ............................. 25, 26

Crist v. Focus Homes, Inc., 122 F.3d 1107

(8th Cir. 1997) .......................................................... 27

Cummings v. Premier Rehab Keller,

P.L.L.C., 596 U.S. 212 (2022)................................. 23

Davis ex rel. LaShonda D. v. Monroe

County Board of Education, 526 U.S.

629 (1999) ........................................... 2, 15, 22, 23, 25

Doe v. City of Belleville, 119 F.3d 563 (7th

Cir. 1997), vacated on other grounds, 523

U.S. 1001 (1998) ....................................................... 28

EEOC v. National Education Ass’n,

Alaska, 422 F.3d 840 (9th Cir. 2005) .................... 25

Ellison v. Brady, 924 F.2d 872 (9th Cir.

1991) .......................................................................... 26

Fennell v. Marion Independent School

District, 804 F.3d 398 (5th Cir. 2015) ................... 34

Gebser v. Lago Vista Independent School

District, 524 U.S. 274 (1998) ............................ 15, 24

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

1283 (11th Cir. 2012) ............................................... 27

Kestenbaum v. President & Fellows of

Harvard College, 743 F. Supp. 3d 297 (D.

Mass. 2024) ............................................................... 17

Keyishian v. Board of Regents, 385 U.S. 589

(1967) ........................................................................ 36

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

Cir. 2015) ............................................................ 25, 26

Menzia v. Austin Independent School

District, 47 F.4th 354 (5th Cir. 2022) ................... 18

Meritor Savings Bank, FSB v. Vinson, 477

U.S. 57 (1986) ........................................................... 25

Porto v. Town of Tewksbury, 488 F.3d 67

(1st Cir. 2007) .......................................................... 18

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

2002) .....................................................................26-27

Trask v. Secretary, Department of Veterans

Affairs, 822 F.3d 1179 (11th Cir. 2016),

abrogated by Babb v. Wilkie, 589 U.S.

399 (2020) ................................................................. 26

Walston v. Foley & Lardner, LLP, 516 F.

App’x 1 (D.C. Cir. 2013) ................................... 24, 27

Wolfe v. Fayetteville, Arkansas School

District, 648 F.3d 860 (8th Cir. 2011) ................... 23

Zeno v. Pine Plains Central School

District, 702 F.3d 655 (2d Cir. 2012)............... 34, 35

STATUTES

20 U.S.C. § 1681(a) ........................................................ 22

42 U.S.C. § 2000d ............................................ 2, 7, 21, 30

42 U.S.C. § 2000e-2(k) .................................................. 24

OTHER AUTHORITIES

Office for Civil Rights, U.S. Dep’t of Educ.,

Dear Colleague Letter on the First

Amendment

(July

28,

2003),

https://bit.ly/4bY9Zid ............................................. 35

Office for Civil Rights, U.S. Dep’t of Educ.,

Dear Colleague Letter (May 7, 2024),

https://bit.ly/3z1ySeg........................................ 30, 35

Recording of Oral Argument, No. 24-1800

(1st

Cir.

Apr.

2025),

https://www.ca1.uscourts.gov/sites/ca1/f

iles/oralargs/24-1800_20250407.mp3 .................... 31

INTRODUCTION

Since the October 7, 2023 terrorist attacks in Israel,

there has been a rising tide of antisemitism across the

world. The Massachusetts Institute of Technology

(“MIT”) is firmly committed to ensuring that

antisemitism has no place in the MIT community and has

taken decisive steps to combat antisemitism on campus.

MIT also embraces free expression as a core value.

As an academic institution, MIT’s success depends on

the open exchange of ideas. Deliberation, debate, and

dissent are essential to MIT’s educational mission.

Accordingly, community members are entitled to

express and vigorously debate their diverse

perspectives—including on contentious political

issues—without

being

punished

MIT’s

administration for their viewpoints. But they must do

so in accordance with neutral rules that MIT has put in

place to promote a safe and nondiscriminatory campus

environment.

After the October 7, 2023 attacks, students, faculty,

and staff expressed many divergent political opinions

about the Israel-Palestine conflict. When students

expressed political views in a manner that complied with

MIT’s neutral rules governing the time, place, and

manner of speech, MIT’s leadership made community

statements urging students to be respectful, but did not

censor their speech. But when students broke MIT’s

rules, MIT publicly condemned their actions and took

remedial steps that escalated as the activity persisted or

intensified—including interim suspensions, formal

disciplinary proceedings, and, ultimately, arrests.

Petitioners nonetheless contend that MIT’s remedial

actions were inadequate. As relevant here, petitioners

sued MIT under Title VI of the Civil Rights Act of 1964,

42 U.S.C. § 2000d, which prohibits discrimination at

federally funded universities on the basis of race, color,

or national origin.

To state a Title VI claim based on student-onstudent harassment, petitioners must adequately allege,

among other things, that (1) they experienced a hostile

environment, i.e., harassment that is “so severe,

pervasive, and objectively offensive that it effectively

bars the victim’s access to an educational opportunity or

benefit,” and (2) MIT acted with “deliberate

indifference” to that hostile environment. Davis ex rel.

LaShonda D. v. Monroe County Board of Education,

526 U.S. 629, 633 (1999). The First Circuit held that

petitioners did not adequately allege either of those

elements. First, it held that petitioners did not

adequately allege that they suffered actionable

harassment. The court carefully scrutinized all of the

well-pleaded factual allegations and found them

insufficient to state a claim. See Pet. App. 14a-34a.

Second, the First Circuit held that petitioners did not

adequately allege that MIT had acted with deliberate

indifference. As the First Circuit emphasized, as events

developed, “MIT took an escalating series of actions

aimed at calming the turmoil without violence.” Pet.

App. 36a; see Pet. App. 36a-37a. Because that response

“was far from ‘clearly unreasonable,’” the court held,

petitioners’ Title VI claim failed. Pet. App. 36a.

In their petition for certiorari, petitioners challenge

the First Circuit’s conclusion on the first of those issues.

The petition should be denied. There are multiple

serious vehicle problems, the decision below is factbound and does not implicate any split of authority, and

adopting petitioners’ vision of Title VI would jeopardize

free speech on university campuses.

To begin with a major vehicle problem, petitioners

challenge only one of the First Circuit’s two independent

holdings. The First Circuit held both that there was no

hostile environment and that, even if there was, MIT

was not deliberately indifferent.

Pet. App. 15a.

Petitioners challenge only the first holding. They omit

the alternative holding from their facts section and do

not mention it until page 32, where they assert that the

two holdings are “intertwined.” They are not. The First

Circuit explicitly held that “even if the protests are

viewed as the type of harassment proscribed by

Title VI”—in other words, even if petitioners prevail on

both of the questions presented in their petition—“MIT

was not deliberately indifferent,” given that “MIT took

an escalating series of actions aimed at calming the

turmoil without violence.” Pet. App. 35a-36a. The court

emphasized that its deliberate-indifference holding was

“independent of [its] conclusion as to the nature of the

student protestors’ speech and conduct.” Pet. App. 39a.

Thus, even if petitioners were to prevail here, the First

Circuit’s decision would still stand, so the petition

improperly seeks an advisory opinion.

Moreover, petitioners’ questions presented do not

merit review. In their first question, petitioners ask this

Court to decide whether “the harassers’ subjective

discriminatory intent is an element of a hostile

environment claim under Title VI.” Pet. i. But the First

Circuit’s analysis reached no sweeping conclusions about

the elements of a Title VI claim and instead applied wellsettled precedent to the specific facts of this case. The

First Circuit recognized that some of the protestors’

statements could be viewed as so “inherently

antisemitic” as to create a hostile environment, but

concluded that certain statements alleged in the

complaint did not satisfy that standard. Pet. App. 23a28a. The First Circuit also acknowledged that there

were incidents that “any thoughtful person would

regard as antisemitic,” but concluded that they did not

satisfy this Court’s requirement of “severe, pervasive,

and objectively offensive” conduct and that petitioners

failed to plead that MIT had knowledge of them. Pet.

App. 32a-34a (internal quotation marks omitted). The

petition does not seek review of those fact-bound

conclusions. As Judge Dunlap emphasized in concurring

in the denial of rehearing en banc, the case turns on “the

unique facts as pled.” Pet. App. 70a.

The First Circuit’s decision as to the first question

presented also does not conflict with the decision of any

other circuit. Not a single case petitioners cite as part of

this purported split actually addresses a claim like the

one in this case—a Title VI deliberate-indifference claim

premised on a hostile educational environment. Instead,

all of petitioners’ cases involve the standard for a hostile

work environment under either Title VII or related

employment statutes, none of which were enacted under

the Spending Clause and all of which differ significantly

from Title VI. In all events, the allegations in those outof-circuit cases would suffice to state a claim under the

reasoning of the decision below, confirming there is no

conflict to resolve.

In their second question presented, petitioners ask

the Court to hold that the First Amendment does not

“bar[] a plaintiff from pleading a Title VI hostile

environment claim based on ‘protected speech.’” Pet. i.

But the First Circuit expressly declined to decide

whether “racist speech” can be “punished pursuant to

Title VI without violating the First Amendment”;

instead, it held more narrowly that “even assuming that

some racist speech can constitutionally be punished

pursuant to Title VI,” petitioners’ allegations were

inadequate. Pet. App. 21a-23a. That fact-bound holding

does not merit review.

Further, as both the panel and Judge Dunlap’s

concurrence in the denial of rehearing en banc noted,

petitioners took the opposite position below, contending

that “only conduct or speech not protected by the First

Amendment could give rise to liability under [Title VI].”

Pet. App. 66a (Dunlap, J.); see Pet. App. 21a (panel

opinion). Petitioners argued below that “racist speech is

itself actionable under Title VI because it falls outside

First Amendment protections,” Pet. App. 67a (Dunlap,

J.)—a position petitioners have now abandoned.

There is no circuit split here either. Petitioners

identify no case holding that the failure to censor

political speech, without more, can trigger Title VI

liability. The purportedly conflicting cases say nothing

at all about the First Amendment and would have come

out the same way in the First Circuit.

Finally, the Court should deny review because of the

troubling implications of petitioners’ position. Although

this case involves protests over the Israel-Palestine

conflict, petitioners’ vision of Title VI sweeps more

broadly. Under petitioners’ approach, a university could

be liable for failing to censor pure political speech, even

when the speaker does not intend to discriminate based

on race, color, or national origin. For example, if a

student opines on this Court’s decision in Students for

Fair Admissions or current federal immigration policy,

whether for or against, and another student experiences

that statement as racially discriminatory, the university

could be legally obligated to punish the speaker, even if

the speech is pure political speech protected by the First

Amendment and even if the speaker merely intends to

share a political opinion. That position would result in a

significant expansion of Title VI and augur a new era of

censorship of political speech on campus—across the full

range of viewpoints—by university administrators.

STATEMENT OF THE CASE

Factual Background

Petitioners are two MIT students—Katerina Boukin

and Marilyn Meyers—and a California-based advocacy

organization named StandWithUs Center for Legal

Justice. D. Ct. Dkt. 40, ¶¶18-20 (“Am. Compl.”). As

relevant here, petitioners allege that, after the

October 7, 2023 terrorist attacks, several student groups

organized a series of campus events that together

created a hostile environment for MIT’s Jewish and

Israeli students. Petitioners seek to hold MIT liable for

that hostile environment under Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d, on the ground that

MIT was deliberately indifferent in response.

The complaint describes the various “protests,

demonstrations, and encampments” that occurred on

MIT’s campus in the months following October 7, 2023—

events the complaint asserts “were motivated by a

specific class-based, invidiously discriminatory animus,

specifically at Jewish and Israeli members of the MIT

community.” Am. Compl. ¶281; see id. ¶¶282, 320.

Specifically, petitioners allege that protestors voiced

support for Palestine and denounced “the Israeli

occupation, its racist apartheid system, and its military

rule,” and criticized Zionism. Id. ¶147; see id. ¶¶150, 237.

Petitioners allege that, beginning on October 8, 2023,

two student groups—Palestine@MIT and MIT Coalition

Against Apartheid—issued statements and organized

rallies, walkouts, and other demonstrations, many of

them in Lobby 7, “a major thoroughfare” on MIT’s

campus. Id. ¶159; see id. ¶¶125, 131, 146-147, 159-162,

169-188. Other student organizations allegedly joined or

co-sponsored some of these events. See id. ¶¶320-321.

These protests culminated in an encampment of tents on

Kresge Lawn, a common space “in the middle of

campus,” that began on April 21, 2024, and was cleared

by MIT on May 10, 2024. See id. ¶¶220-245. According

to the complaint, these activities “disrupt[ed] all

students’ ability to participate in campus life.” Id. ¶16.

The complaint also recounts—even as it seeks to

downplay—MIT’s multi-faceted response to the events

just described.

These allegations, together with

materials properly incorporated by reference into the

complaint, reflect an active, sustained effort by MIT’s

senior leadership to address the events on campus and

adapt that response as the situation evolved.

For example, on November 8, 2023, after the first

wave of campus protests, MIT issued a communication

outlining “the boundaries for protests on [MIT’s]

campus,” and explaining that MIT had enhanced

security measures and patrols, updated its guidelines for

expressive activity, created a team to respond promptly

to reports of harassment and discrimination arising from

campus activism, and expanded supportive services for

students. JA-201;1 see JA-196-199; Am. Compl. ¶257 &

n.153. Then, when protestors disregarded these rules at

an event organized by the Coalition Against Apartheid

in Lobby 7 on November 9, 2023, MIT’s President,

Provost, and Chancellor warned the protestors in

writing that their activity violated MIT’s rules and

would result in discipline if they did not leave Lobby 7

by a stated time. Am. Compl. ¶¶170, 177, 180, 183.

Protestors who remained after the deadline were

“suspended from non-academic campus activities” as an

interim action pending final adjudication. Id. ¶184.

Later that same day, MIT’s President issued a

statement to the MIT community condemning the

protest, reiterating MIT’s time-place-and-manner

policies, and describing the steps MIT was taking “to

protect the safety of [its] community.” Id. ¶182 & n.103.

“JA-__” cites refer to the Joint Appendix filed in the First Circuit,

Ct. App. Dkt. 118222210 (Dec. 4, 2024).

MIT later provisionally suspended the Coalition Against

Apartheid as a student organization. Id. ¶¶125 & n.73,

170, 302.

MIT responded in similarly decisive fashion to the

April 2024 Kresge Lawn encampment. Shortly after the

encampment began, MIT’s President issued a video

statement calling the encampment “a clear violation” of

MIT’s rules for which participants would be disciplined.

Id. ¶227 & n.132. That statement also described in detail

the actions MIT was taking to bring the encampment to

an end safely and minimize its disruptive effects on

campus: “[T]o avoid any further escalation, we’re

working closely and constantly with our Student Life

team, the faculty members who are advising the

[protestors], and our own campus police. Out of an

abundance of caution, at my direction, the MIT[ Police

Department] is on the scene 24 hours a day.” JA-210211. Then, on May 6, 2024, MIT directed all students to

leave the encampment by 2:30 p.m. or face discipline.

Am. Compl. ¶238 & n.143; see JA-217.

MIT cleared the encampment for good on May 10,

2024. See Am. Compl. ¶244 & n.147. Soon thereafter,

MIT released a detailed timeline of its efforts to address

the encampment and noted that MIT had, as time went

on, moved from “[d]isciplinary measures” like

“suspensions” to more serious measures: in total, 19

students were arrested on May 9 and 10. JA-216-217.

MIT’s actions were not limited to defusing individual

protests. MIT maintains a policy against harassment

and discrimination, see Am. Compl. ¶¶45-53; it issued

new or updated policies and statements regarding

expressive activity on campus, see, e.g., id. ¶257; and it

formed an initiative called Standing Together Against

Hate “to spearhead efforts to combat antisemitism at

MIT,” id. ¶¶201-202. Throughout, MIT’s President was

clear: “Antisemitism is real, and it is rising in the world.

We cannot let it poison our community.” JA-224.

Proceedings Below

Petitioners sued MIT on March 7, 2024, and amended

their complaint on May 30, 2024. See D. Ct. Dkts. 1, 40.

As relevant here, the operative pleading asserted that

MIT violated its obligations under Title VI by acting

with deliberate indifference to campus antisemitism that

was so severe, pervasive, and objectively offensive as to

constitute a hostile environment. Am. Compl. ¶¶378392.

MIT moved to dismiss, and the district court granted

that motion. Pet. App. 48a-62a. The court ruled solely

on deliberate-indifference grounds, see Pet. App. 56a59a, holding that MIT’s “evolving and progressively

punitive response largely tracked its increasing

awareness of the hostility that demonstrators directed

at Jewish and Israeli students,” which meant that “MIT

did not react in a clearly unreasonable manner,” Pet.

App. 58a.

The First Circuit affirmed, holding that petitioners’

Title VI claim “fail[ed] for two independent reasons.”

Pet. App. 15a.

Regarding deliberate indifference, the court

“agree[d] with the district court that[,] even …

accept[ing] [petitioners’] view of the protests as

manifesting … antisemitism that could be viewed as

actionable harassment under Title VI, MIT’s reaction

was not clearly unreasonable.” Pet. App. 39a. The court

explained that “[t]his is not a case in which plaintiffs

claim their school took no action in response to reported

harassment.” Pet. App. 35a. To the contrary, over the

seven months of protests, “MIT took an escalating series

of actions aimed at calming the turmoil without

violence.” Pet. App. 36a-37a. To wit: MIT—among

other actions—“revised its campus expression rules and

policies”; “announc[ed] procedures for accelerated action

on reports of harassment and discrimination”; “met with

leaders of the Jewish community”; “instructed

protestors to vacate … by a set time or face discipline”;

“formed a Standing Together Against Hate initiative to

combat antisemitism on campus”; suspended a student

group that protested an “event about antisemitism”

sponsored by that initiative; “install[ed] a 24-hour police

presence” on campus; “suspended students following

unruly protests” and had other protestors arrested; and,

finally, “clear[ed] the encampment … and … had the

remaining … protestors arrested.” Pet. App. 36a-37a

(internal quotation marks omitted). In sum, petitioners

had not “allege[d] facts plausibly indicating that MIT’s

course of action” was “clearly unreasonable.” Pet. App.

38a-39a. That holding, the court emphasized, was

“independent of [its] conclusion as to the nature of the

student protestors’ speech and conduct.” Pet. App. 39a.

On that latter point, the court separately concluded

that petitioners had failed to plausibly allege that they

suffered a hostile environment based on race or national

origin. It began by noting that “the First Amendment

erects safeguards that limit the ability of the

government or private plaintiffs to punish MIT for not

restricting more severely the student protestors’

protected speech”—a point consistent with petitioners’

concession that “‘courts should interpret Title VI to

comport with First Amendment principles.’” Pet. App.

21a. As the court explained, petitioners never argued

“that Title VI can be used to punish a school for not

stifling student speech that the government itself could

not punish,” but instead argued that the protestors’

speech “fell outside the protection of the First

Amendment” entirely “because the speech was racist

(i.e., antisemitic).” Id.

The First Circuit rejected that theory. It reserved

the question whether “racist speech [can] be punished

pursuant to Title VI without violating the First

Amendment,” instead holding that, even assuming that

it could, petitioners failed to plausibly allege that the

protestors’ actions created an environment hostile to

MIT’s Jewish and Israeli students. Pet. App. 21a-23a.

To reach that conclusion, the court scrutinized the

complaint’s allegations. It first found that protestors’

facially race-neutral criticisms of Israeli policy and

opposition to Zionism did not “necessarily manifest[]

antisemitism,” and observed that the complaint failed to

“allege facts that, if true, would otherwise permit the

inference that in these specific circumstances the

protestors’ strident criticisms of Israel were driven by

antisemitism.” Pet. App. 27a-28a. But the court did

credit “a handful of incidents, occurring over the course

of seven months, that any thoughtful person would

regard as antisemitic”—among them the “heckl[ing]” of

an individual “because he was visibly Jewish” and a

single “tweet equating Jews with Nazis.” Pet. App. 31a32a.

Taken as a whole, however, the court deemed these

alleged incidents not “‘severe, pervasive, and objectively

offensive,’” as required for Title VI liability. Pet. App.

33a-34a (quoting Davis, 526 U.S. at 633). It further held

that petitioners had not adequately alleged that MIT

had knowledge of them. Pet. App. 34a. Petitioners’

claim thus failed “even assuming that Title VI compels a

private university to take reasonable steps to shield its

students from racist speech per se.” Id.

Petitioners sought panel and en banc rehearing, and

the First Circuit denied both. Pet. App. 63a-64a. Judge

Dunlap issued an opinion concurring in the denial of

rehearing en banc. Like the district court, he would have

“resolved the case solely on” the “narrower ground” that

MIT was not deliberately indifferent. Pet. App. 70a.

Judge Dunlap thus saw the panel’s harassment

analysis—including its discussion of the First

Amendment—as “ultimately unnecessary.” Id. While

Judge Dunlap expressed uncertainty about some of the

panel’s statements on the interaction between Title VI

and the First Amendment—an issue he noted was “not

… well developed in briefing,” Pet. App. 66a-67a—he

nonetheless found rehearing en banc unwarranted

because the panel’s decision was rooted in “the unique

facts as pled” and “sufficiently open-ended to allow …

case law to continue developing.” Pet. App. 67a, 70a.

REASONS FOR DENYING THE PETITION

The Court should deny the petition. Both questions

presented by petitioners pertain to the First Circuit’s

hostile-environment holding.

Petitioners do not

challenge the First Circuit’s independently sufficient

alternative holding regarding deliberate indifference.

Thus, even if petitioners prevailed on both of their

questions presented, the result below would not change.

Even as to the First Circuit’s hostile-environment

holding, neither question presented warrants review.

There is no circuit split—all of the allegedly conflicting

cases address different statutes or unrelated issues.

Further, the First Circuit issued no broad conclusions of

law.

Instead, as Judge Dunlap explained in his

concurrence in the denial of rehearing en banc, the result

in this case turned on its “unique facts.” Pet. App. 70a.

Moreover, Judge Dunlap added, because petitioners’

legal theories were “not … well developed in briefing,”

the panel issued an “open-ended” decision designed to

allow the court’s “case law to continue developing.” Pet.

App. 66a-67a.

This case also suffers from serious vehicle problems,

including that petitioners’ arguments in this Court are

diametrically opposed to the arguments they pursued

below. This Court’s review is unwarranted.

The Court Should Deny Review Because the

First Circuit’s Deliberate-Indifference Holding

Is Independently Sufficient to Support the

Judgment.

The Court should deny certiorari because answering

the questions presented by petitioners in their favor

would not afford petitioners any relief.

Petitioners bring a Title VI hostile-environment

claim based on alleged student-on-student harassment.

To state such a claim, petitioners must establish, among

other things, that (1) the harassment was “so severe,

pervasive, and objectively offensive that it can be said to

deprive the victims of access to the educational

opportunities or benefits provided by the school” on the

basis of race, color, or national origin, and (2) the school

had “actual knowledge” of that harassment and was

“deliberately indifferent” to it, meaning that its

response was “clearly unreasonable in light of the known

circumstances.” Davis, 526 U.S. at 649-50. The premise

of the deliberate-indifference standard is that “an official

who is advised of a … violation refuses to take action to

bring the [school] into compliance”—“in other words, …

an official decision by the [school] not to remedy the

violation.” Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, 290 (1998).

Both of petitioners’ questions presented take aim at

the First Circuit’s conclusion solely on the former issue:

that petitioners’ “allegations do not plausibly rise to the

level of actionable harassment required by Title VI.”

Pet. App. 15a. But the First Circuit also held that

petitioners’ claim failed for a second, “independent”

reason: “even if the protestors’ conduct as a whole was

actionable harassment under Title VI, MIT is not liable

because it was not deliberately indifferent to the effects

of the protests on Jewish and Israeli students.” Id.

(emphasis added). Because petitioners do not seek

review of that separately dispositive holding, the

petition seeks an advisory opinion.

Petitioners ignore the panel’s alternative holding

until page 32 of the petition, where they assert that the

panel’s “alternative holding[]” on deliberate indifference

was “premised on” and “intertwined with” the panel’s

assertedly incorrect hostile-environment analysis.

Pet. 32-33. It was not. The panel repeatedly stated that

it was assessing deliberate indifference on the

assumption that petitioners were correct that “the

protests … manifest[ed] a degree and form of

antisemitism that could be viewed as actionable

harassment under Title VI.” Pet. App. 38a-39a; see Pet.

App. 35a (accepting arguendo that the protests were

“the type of harassment proscribed by Title VI”).

Twice, the panel went out of its way to make clear that

its two holdings were independent. See Pet. App. 15a

(referring to the court’s “two independent reasons”);

Pet. App. 39a (noting that the court’s deliberateindifference holding was “independent of [its] conclusion

as to the nature of the student protestors’ speech and

conduct”).

Petitioners point to the First Circuit’s statement

that, in assessing deliberate indifference, it would

consider “the nature of the activity that plaintiffs say

MIT should have eliminated more quickly.” Pet. 32

(quoting Pet. App. 37a). According to petitioners, this

sentence implies that the First Circuit “limited its

analysis” and failed to consider petitioners’ allegations of

a hostile environment. Id. But the First Circuit said the

opposite: in the very next sentence, the court made clear

that it was “accept[ing] plaintiffs’ position that some

conduct … was antisemitic” and nonetheless found no

deliberate indifference. Pet. App. 37a.

A comparison between this case and Kestenbaum v.

President & Fellows of Harvard College, 743 F. Supp. 3d

297 (D. Mass. 2024), is instructive. In Kestenbaum, the

court concluded that the plaintiffs had adequately

alleged both that the plaintiff students experienced

“severe, pervasive, and objectively offensive

harassment” on campus and that the institution was

deliberately indifferent to that harassment. 743 F. Supp.

3d at 308-10. Petitioners characterize the Kestenbaum

court as “properly applying Davis.” Pet. 33. But the

Kestenbaum district judge was the same district judge

as in this case, and he concluded, on the facts alleged

here, that petitioners had not adequately alleged MIT’s

deliberate indifference. This reinforces that the First

Circuit’s deliberate-indifference conclusion did not

follow from a cramped understanding of what

constitutes a hostile environment: even a court that

adopted a hostile-environment standard that petitioners

endorse nonetheless concluded that MIT was not

deliberately indifferent.

While petitioners quote at length from Judge

Dunlap’s opinion concurring in the denial of rehearing en

banc, see Pet. 14, they neglect to point out that his

central qualm with the panel’s decision was that it did

not “resolve[] the case solely on th[e] narrower ground”

that “MIT did not act with deliberate indifference,” Pet.

App. 69a-70a. As a result, Judge Dunlap explained, the

panel’s entire harassment analysis was “ultimately

unnecessary” to its disposition of the appeal. Pet.

App. 70a.2 This Court’s review is equally unnecessary.

II.

On the First Circuit’s Hostile-Environment

Holding, This Case Is Fact-Bound, Does Not

Implicate Any Split of Authority, and Suffers

from Serious Vehicle Problems.

Even setting aside the First Circuit’s independently

dispositive deliberate-indifference holding, neither

Courts of appeals regularly resolve deliberate-indifference claims

under Title VI and Title IX by finding the school’s response to be

adequate without deciding whether there was actionable

harassment. E.g., Adams v. Demopolis City Schs., 80 F.4th 1259,

1270-72 & n.13 (11th Cir. 2023) (assuming without deciding “that the

harassment [plaintiff] endured was the type of harassment included

within the broad sweep of Title IX” and granting summary

judgment to the school because “no reasonable jury could find that

the defendants acted with deliberate indifference in response to the

known acts of bullying against [plaintiff]”); Menzia v. Austin Indep.

Sch. Dist., 47 F.4th 354, 364 (5th Cir. 2022) (affirming grant of

summary judgment for the school because it was not deliberately

indifferent to alleged racial harassment under Title VI, and holding

that, as a result, the question whether there was, in fact, “a racially

hostile environment [was] moot”); Porto v. Town of Tewksbury, 488

F.3d 67, 73 (1st Cir. 2007) (Title IX case in which the court

“assume[d] (without deciding) that [plaintiff] was subject to severe,

pervasive, and objectively offensive harassment” and concluded

that, “[e]ven making th[at] assumption[], … [no] rational jury could

have concluded that [the defendant] was deliberately indifferent to

the harassment”).

question presented by petitioners warrants review. The

First Circuit issued fact-bound determinations that do

not conflict with the decisions of any other circuit.

Petitioners’ first question presented does

not merit review.

Petitioners’ first question presented asks whether “a

plaintiff must plausibly allege and prove that her

harassers had discriminatory intent or animus.” Pet. 15.

But the First Circuit reached no sweeping conclusions

about the elements of a Title VI claim alleging deliberate

indifference to a hostile environment. Instead, it

conducted a fact-bound analysis of petitioners’ wellpleaded allegations and found them wanting. Even to

the extent the First Circuit’s analysis suggests that

harassers must intend to discriminate, that conclusion

follows directly from this Court’s Title VI precedents

and aligns with other circuits’ decisions.

1. The First Circuit did not require petitioners to

plead specific allegations of “discriminatory intent or

animus” in their complaint. Pet. 15. To the contrary, the

First Circuit accepted petitioners’ premise that

statements and conduct could be so “inherently

antisemitic,” Pet. App. 23a-24a, that specific allegations

as to the harassers’ subjective mental state would be

unnecessary. Even accepting that premise, the court

concluded that petitioners’ complaint was inadequately

pleaded based on a careful review of the specific

allegations in this case. In the court’s view, certain

statements by protestors, such as “criticism of Israel’s

conduct in Gaza,” were not “inherently antisemitic.” Id.

At the same time, there were other statements and

incidents that, in the court’s view, “any thoughtful

person would regard as antisemitic.” Pet. App. 32a.

Importantly, the First Circuit did not demand specific

allegations regarding the state of mind of the

perpetrators of those incidents; their antisemitic nature

could be inferred from the incidents themselves.

Instead, the First Circuit examined those incidents and

concluded that they did not amount to “‘severe,

pervasive, and objectively offensive’” conduct as

required for Title VI liability. Pet. App. 33a (quoting

Davis, 526 U.S. at 633). It further concluded that MIT

lacked adequate knowledge. Pet. App. 34a. The petition

does not challenge those fact-bound conclusions.

For these reasons, petitioners are simply wrong to

assert that, under the First Circuit’s approach, “a

woman subjected to repeated and uncomfortable sexual

advances” and “a Black student subjected to racial slurs

by students wearing white hoods and waving nooses

would not be able to state a claim” without separately

pleading and proving the harassers’ subjective intent.

Pet. 6. Slurs and nooses are paradigmatic examples of

“inherently” racist speech that “any thoughtful person

would regard as” racist. Pet. App. 23a, 32a. Likewise,

sexual advances are “inherently” based on the victim’s

sex. Id. A complaint containing such allegations would

withstand a motion to dismiss in the First Circuit

regardless of whether the plaintiff included allegations

about the harassers’ motivations.

A portion of the First Circuit’s decision does assess

petitioners’ allegations that “the protestors’ strident

criticisms of Israel were driven by antisemitism.” Pet.

App. 27a. But that analysis addressed statements that

the court did not regard as inherently antisemitic, and

was in addition to—not instead of—the court’s analysis

of the statements and incidents that the First Circuit

acknowledged were inherently antisemitic. Further, the

First Circuit’s discussion was responsive to petitioners’

own allegation that the protests “were motivated by a

specific class-based, invidiously discriminatory animus,

specifically at Jewish and Israeli members of the MIT

community.” Am. Compl. ¶281. The discussion should

therefore not be construed as holding that, where

speakers utter inherently antisemitic statements, the

plaintiff must separately plead that the speakers were

“driven by antisemitism.”

As Judge Dunlap noted, “different facts may well

justify a different conclusion,” but the decision below

addresses “the unique facts as pled” here. Pet. App. 70a.

Judge Dunlap also observed that the panel’s opinion was

consistent with the principle that “the severity of the

harassment … must be judged from the perspective of a

reasonable person in the plaintiff’s position.” Pet. App.

71a.

2. If the First Circuit’s decision is construed as

requiring petitioners to allege that the protestors had

the intent to discriminate, that holding was correct.

Title VI provides: “No person in the United States shall,

on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of,

or be subjected to discrimination under any program or

activity receiving Federal financial assistance.” 42

U.S.C. § 2000d.

In Davis, this Court considered

Title IX, which includes a similarly worded prohibition

of sex discrimination at federally funded universities. 20

U.S.C. § 1681(a).3 The question in Davis was whether

that prohibition covers only discrimination by school

officials, or also encompasses discrimination by one

student against another student. The Court held that

“student-on-student sexual harassment, if sufficiently

severe, can … rise to the level of discrimination

actionable under the statute,” and that funding

recipients can be held liable if they are “deliberately

indifferent” to that form of discrimination. Davis, 526

U.S. at 650. Subsequently, in Alexander v. Sandoval,

532 U.S. 275 (2001), the Court held that Title VI

“directly reach[es] only instances of intentional

discrimination” and thus has no privately enforceable

disparate-impact cause of action. Id. at 280-81, 293

(citation omitted). Thus, Davis holds that student-onstudent discrimination is a type of actionable

discrimination, while Alexander clarifies that

discrimination for Title VI purposes refers only to

intentional discrimination. Putting those two holdings

together, Davis and Alexander hold that student-onstudent intentional discrimination is a type of actionable

discrimination—that is, Title VI imposes liability only

when funding recipients are deliberately indifferent to

cases of intentional student-on-student discrimination

on the basis of race, color, or national origin.

Petitioners claim that “liability turns not on the

perpetrator’s mental state, but on the school’s own

In this case, the parties agreed that the standards for liability

under Title IX and Title VI align. See Pet. App. 14a-15a.

conduct when confronted with knowledge of a hostile

environment.” Pet. 20. But Davis’s recognition that

Title VI requires schools to respond to race-based

hostile environments cannot be detached from the text

of Title VI itself. As Davis holds, a school’s tolerance of

a hostile environment is actionable because the creation

of a hostile environment is a type of discrimination. And

under Alexander, only intentional discrimination is

actionable under Title VI. Thus, liability turns on

whether the university is deliberately indifferent to

intentional student-on-student discrimination. See, e.g.,

Wolfe v. Fayetteville, Ark. Sch. Dist., 648 F.3d 860, 867

(8th Cir. 2011) (holding, in the context of a deliberateindifference claim under Title IX, that a plaintiff must

“show the harasser intended to discriminate against him

‘on the basis of sex,’ meaning the harassment was

motivated by either [the plaintiff]’s gender or failure to

conform with gender stereotypes”).

At a minimum, Title VI does not clearly impose

liability—which means MIT cannot be liable. Title VI is

a Spending Clause statute, and hence requires that

recipients have “clear notice of the consequences of their

acceptance of federal funds.” Davis, 526 U.S. at 656

(Kennedy, J., dissenting).

That principle applies

regardless of whether the recipient is a state actor or a

private entity. See Cummings v. Premier Rehab Keller,

P.L.L.C., 596 U.S. 212, 219 (2022) (holding, in a case

involving a private defendant, that “if Congress intends

to impose a condition on the grant of federal moneys, it

must do so unambiguously” (quotation marks omitted)).

This clear-statement requirement is dispositive here:

Title VI does not clearly and unambiguously impose

obligations on universities with respect to peer

harassment that is subjectively perceived as offensive

but is not motivated by discriminatory intent.

3. The First Circuit’s decision does not conflict with

the decision of any other circuit. To begin, none of the

purportedly conflicting cases identified by petitioners

are Title VI cases addressing deliberate-indifference

claims premised on an allegedly hostile educational

environment. Instead, all of petitioners’ cases are

employment discrimination cases arising under

Title VII or parallel statutes applying Title VII’s

substantive standard. 4 That distinction forecloses any

claimed split.

Unlike Title IX (another Spending Clause statute),

Title VII differs from Title VI in myriad respects.

Among other differences, Title VI requires intentional

discrimination, whereas Title VII does not. Compare

Alexander, 532 U.S. at 280-81, 293, with 42 U.S.C.

§ 2000e-2(k). Title VI and Title IX are Spending Clause

statutes with clear-notice requirements, whereas

Title VII is not. See Gebser, 524 U.S. at 286. And

Title VI and Title IX, unlike Title VII, lack an express

private right of action—and this Court has therefore

been appropriately cautious about the scope of liability.

Id. at 289-90.

Additionally, the legal standards for hostileenvironment liability are different. Under Title VII,

harassment must be “sufficiently severe or pervasive”

See, e.g., Walston v. Foley & Lardner, LLP, 516 F. App’x 1, 1-2

(D.C. Cir. 2013) (applying Title VII substantive law to claims under

Title VII, 42 U.S.C. § 1981, and the D.C. Human Rights Act).

to “alter” the conditions of employment. Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (citation

omitted). Under Title VI, harassment must be “so

severe, pervasive, and objectively offensive” that it

“effectively den[ies]” the victim “equal access to an

institution’s resources and opportunities,” and must be

serious enough to have a “systemic effect” on an

educational program.

Davis, 526 U.S. at 651-53.

Petitioners thus cannot establish a circuit split on the

elements of a Title VI claim by comparing the decision

below to Title VII cases.

Even setting aside the material differences between

Title VI and Title VII, there is no circuit split. In each

of the decisions that petitioners say reject an intent

requirement, see Pet. 15-17, the court emphasized that

the discrimination must be based on a protected

characteristic. See Lounds v. Lincare, Inc., 812 F.3d

1208, 1222 (10th Cir. 2015) (plaintiff must show “the

harassment was based on [race]”); Boyer-Liberto v.

Fontainebleau Corp., 786 F.3d 264, 271 (4th Cir. 2015)

(en banc) (plaintiff must show “unwelcome conduct”

“based on the plaintiff’s … race” (citation omitted));

Chapman v. Oakland Living Ctr., Inc., 48 F.4th 222, 231

(4th Cir. 2022) (referring to “harassment based on a

protected characteristic”); EEOC v. Nat’l Educ. Ass’n,

Alaska, 422 F.3d 840, 844-45 (9th Cir. 2005) (analyzing

“the ‘because of … sex’ element of the action”). These

cases then hold that, where it is sufficiently clear from

the conduct itself that it was based on a protected

characteristic, no separate showing of the harasser’s

intent is required. That unremarkable proposition

follows from the facts of those cases. Where the conduct

at issue is a racial epithet, see Lounds, 812 F.3d at 1230;

Chapman, 48 F.4th at 231, or an unwanted romantic

overture, see Ellison v. Brady, 924 F.2d 872, 880 (9th

Cir. 1991), the connection to race or sex is evident from

the conduct itself.

The First Circuit adopted the same view of hostileenvironment liability under Title VI. As discussed, it

credited several incidents as antisemitic without

inquiring into the alleged harassers’ subjective intent.

See Pet. App. 31a-32a; supra pp. 19-20. Those incidents,

the court found, self-evidently “confront[ed] Jewish

students ‘on the ground’ … that they were Jewish,” Pet.

App. 32a, and that was enough to establish they were

discriminatory under Title VI (albeit insufficiently

“severe, pervasive, and objectively offensive” to state a

claim, Pet. App. 32a-33a). As such, even if Title VI and

Title VII imposed identical hostile-environment

standards, there still would be no circuit split.

The decisions petitioners place on the other side of

the supposed split involved speech that was not

inherently discriminatory.

See Pet. 17-18.

When

discrimination could not be inferred from the speech

itself, and there was no separate showing of

discriminatory intent, those courts declined to impose

liability. See Trask v. Sec’y, Dep’t of Veterans Affs., 822

F.3d 1179, 1196 (11th Cir. 2016) (no liability when

manager made rude and belittling comments that were

not “related to the plaintiffs’ [gender and age]” and

employee could not show “discriminatory animus”),

abrogated on other grounds by Babb v. Wilkie, 589 U.S.

399 (2020); Stewart v. Evans, 275 F.3d 1126, 1131, 1133

(D.C. Cir. 2002) (same, when the alleged harassment was

a profane but “gender-neutral” tirade); Walston v. Foley

& Lardner, LLP, 516 F. App’x 1, 1 (D.C. Cir. 2013)

(same, when the alleged harassment involved generic

“criticism and condescending comments” facially

unconnected to race, so without evidence showing these

actions were “motivated by racial discrimination,” the

plaintiff failed to plausibly allege harassment “because

of” membership in a protected class (citation omitted;

emphasis added)); but see Jones v. UPS Ground Freight,

683 F.3d 1283, 1289, 1297-99 (11th Cir. 2012) (when the

plaintiff found banana peels on his truck and there was

circumstantial evidence indicating that “the person who

placed the bananas was evoking a racial slur,” the

plaintiff’s claim survived summary judgment). Those

fact-bound cases are not part of any circuit split. They

apply the same legal standard as petitioners’ other

employment-discrimination cases and merely reach

different conclusions driven by different facts.

Petitioners’ claim that four circuits are internally

divided, Pet. 18-20, likewise fails. All these cases follow

the same pattern just discussed: courts look to

allegations or evidence of the harasser’s subjective

intent when it is needed to assess whether facially

neutral conduct was in fact based on a protected

characteristic. 5 Indeed, one of the Seventh Circuit

Compare, e.g., Crist v. Focus Homes, Inc., 122 F.3d 1107, 1109,

1111 (8th Cir. 1997) (where harasser sexually assaulted plaintiffs, no

inquiry into intent needed to find “that the harassment was based

on sex”), with Bell v. Baptist Health, 60 F.4th 1198, 1204-05 (8th Cir.

2023) (intent considered where conduct involved “no sexual

remarks”).

opinions petitioners cite makes the point expressly. In

Doe v. City of Belleville, the court explained that when

harassment involves the use of “names, threats, and

physical contact that are unmistakably gender-based,” it

is easy to conclude that “the work environment becomes

hostile to [women] as … wom[en],” “[r]egardless of why

the harasser” acted. 119 F.3d 563, 578 (7th Cir. 1997),

vacated on other grounds, 523 U.S. 1001 (1998). By

contrast, when the alleged harassment involves the use

of words that are “on [their] face … gender neutral, … a

hostile environment claim founded upon that type of

generic harassment typically would require proof that

women were belittled while men were not.” Id.; see also

Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002)

(“Facially neutral incidents may be included … among

the ‘totality of the circumstances’ that courts consider in

any hostile work environment claim, so long as a

reasonable fact-finder could conclude that they were, in

fact, based on sex. But this requires some circumstantial

or other basis for inferring that incidents sex-neutral on

their face were in fact discriminatory.”).

The First Circuit’s decision in this case followed this

precise dichotomy. The protestors’ facially antisemitic

comments were easily labeled as such; but the court

looked to other evidence to determine whether other

actions could likewise be deemed discriminatory. That

was not a novel approach, but rather the approach

adopted by the very cases petitioners themselves cite:

courts uphold hostile-environment claims in some cases

and reject them in others, depending on the specific facts

alleged and evidence adduced. Indeed, not one of

petitioners’ over 20 cases acknowledges the purportedly

“entrenched” circuit split they assert. Pet. 20. No

conflict of authority, either within or among circuits,

exists.

Petitioners’ second question presented does

not merit review.

Petitioners next ask the Court to decide “[w]hether

the First Amendment bars a plaintiff from pleading a

Title VI hostile environment claim based on ‘protected

speech.’” Pet. i. The Court should deny review on that

question because the First Circuit did not resolve the

question petitioners now raise; petitioners affirmatively

waived their argument below; the First Circuit’s limited

First Amendment holding was correct; and there is no

conflict of authority.

1. As framed by the court below, petitioners’ theory

presented two distinct issues: (1) “under what

circumstances, if any, can racist speech be punished

pursuant to Title VI without violating the First

Amendment?” and (2) “even assuming that some racist

speech can constitutionally be punished pursuant to

Title VI, have plaintiffs adequately alleged that the

protestors’ expression was racist (i.e., antisemitic)?”

Pet. App. 21a-22a (emphasis added).

The first of those two questions resembles the

question petitioners now ask this Court to decide. But

the First Circuit went out of its way not to decide it.

Instead, the court explained that, “[b]ecause we can

decide this appeal without addressing the first issue, we

proceed directly to the second.” Pet. App. 22a-23a.

Petitioners themselves recognize as much: after quoting

the panel’s framing of the First Amendment issue—the

same question they now present to this Court—they

concede that “the First Circuit avoided that question.”

Pet. 26; see Pet. 14 (citing Pet. App. 65a-66a). If that is

so, there is no reason for this Court to decide it.

Contrary to petitioners’ claim, the panel did not hold

that protected political speech “cannot, as a matter of

law, ‘constitute[] antisemitic harassment actionable

under Title VI.’” Pet. 26-27 (quoting Pet. App. 30a-31a).

The sentence petitioners quote does not end where their

quotation does. Quoted in full, the sentence reads: “[W]e

decline [petitioners’] invitation to hold that the

protestors’ speech constituted antisemitic harassment

actionable under Title VI merely because it was

stridently pro-Palestinian and anti-Zionist.” Pet.

App. 29a-30a (emphasis added). The panel was making

a different point—if Title VI requires universities to

restrict political speech (an issue the First Circuit did

not decide), that speech must implicate Title VI’s

prohibition on race and national-origin discrimination.

That latter conclusion rests not on the First Amendment

but on the text of Title VI, which proscribes only

discrimination “on the ground of race, color, or national

origin[.]” 42 U.S.C. § 2000d. It also accords with the

view of the Department of Education that “Title VI [is]

not … implicated by conduct based solely on political

views” and that “political protest on its own does not

typically implicate Title VI.” Office for Civil Rights,

U.S. Dep’t of Educ., Dear Colleague Letter, at 10, 16-17

n.32 (May 7, 2024), https://bit.ly/3z1ySeg; see also id. at

16 (“Speech expressing views regarding a particular

country’s policies or practices is protected by the First

Amendment and does not necessarily implicate federal

civil rights laws” like Title VI.).

2. Petitioners’ second question presented suffers

from a fatal vehicle problem: petitioners waived their

argument below.

Petitioners now contend that universities should be

held liable under Title VI even when “the harassment

takes the form of otherwise protected speech.” Pet. 22.

But in their briefing to the panel, petitioners

acknowledged that “‘courts should interpret Title VI to

comport with First Amendment principles.’” Pet.

App. 21a; see Ct. App. Dkt. 118264796, at 20 (Mar. 26,

2025) (“Ct. App. Reply Br.”). As petitioners went on to

explain, “[r]easonable people can understand the

difference between speech on matters of public concern,

directed to the community at large through generally

accepted methods of communication,” on the one hand,

“and targeted harassment,” on the other. Ct. App.

Reply Br. 21. So, when asked at oral argument whether

petitioners argued “that the government, through its

laws, can compel MIT to suppress speech that … would

be constitutionally protected otherwise,” petitioners’

counsel responded: “No, that’s not our position[.]”

Recording of Oral Arg. at 1:45-2:05, No. 24-1800 (1st Cir.

Apr. 7, 2025), https://www.ca1.uscourts.gov/sites/ca1/

files/oralargs/24-1800_20250407.mp3.

Given these unequivocal statements, the panel

expressly decided this case on the premise that “‘courts

should interpret Title VI to comport with First

Amendment principles.’” Pet. App. 21a. Judge Dunlap,

too, concluded that petitioners had “conceded” that

“only conduct or speech not protected by the First

Amendment could give rise to liability under [Title VI].”

Pet. App. 66a; see Pet. App. 67a.6

Instead, the panel explained, petitioners’ theory was

that “the protestors’ speech fell outside the protection of

the First Amendment – and thus within the reach of a

government censor – because the speech was racist (i.e.,

antisemitic).” Pet. App. 21a (emphasis added). Judge

Dunlap understood petitioners’ argument the same way.

Pet. App. 67a (“Plaintiffs’ arguments focused on the

contention that racist speech is itself actionable under

Title VI because it falls outside First Amendment

protections.”). Petitioners now abandon that argument.

Pet. 23 (“Generally, individuals are free under the First

Amendment to use racial slurs, make ethnic taunts, and

display hateful symbols while being protected from

government censorship.”). Instead, they advance the

polar opposite theory: racist speech falling within First

Amendment protections gives rise to Title VI liability.

Pet. 22-24. The Court should not grant certiorari to

entertain this new and waived argument.

In addition to their express waiver of their current

theory, petitioners also forfeited another important

argument. Judge Dunlap postulated an intermediate

The vague statement petitioners point to from their reply brief

below—“There is ample room between the First Amendment and

Title VI for institutions to curtail harassing speech”—does not

preview the elaborate arguments in the petition for certiorari that

the First Amendment has no application to Spending Clause

statutes. Pet. 31 n.3 (quoting Ct. App. Reply Br. 21). And

petitioners cannot avoid waiver by pointing to a statement in their

rehearing petition, submitted after the panel ruled. See id.

position: “speech that is otherwise protected by the

First Amendment” can “nevertheless support a claim

under Title VI as evidence of animus (as opposed to

evidence of an objectively hostile education

environment).” Pet. App. 66a. But, he noted, the “panel

opinion does not squarely address this question,” and the

“best method of harmonizing the tension between the

First Amendment and Title VI has not been well

developed in briefing here.” Pet. App. 66a-67a. Because

petitioners “did not squarely advance” this alternative

approach, Judge Dunlap explained that the panel issued

an “open-ended” decision designed to allow the court’s

“case law to continue developing.” Pet. App. 67a. Those

observations led Judge Dunlap to vote to deny rehearing

en banc, and they should lead the Court to deny

certiorari as well.

3. Given how petitioners framed this case below, the

court’s First Amendment analysis was appropriately

modest. Although the First Circuit did not decide

whether, or to what extent, universities must punish

racist speech, it did hold at a high level of generality that

the “First Amendment erects safeguards that limit the

ability of the government or private plaintiffs to punish

MIT for not restricting more severely the student

protestors’ protected speech.” Pet. App. 21a. That

limited holding is correct. Petitioners’ novel suggestion

that First Amendment principles vanish when a

university receives federal funding, Pet. 27-28, is flatly

inconsistent

with

bedrock

First

Amendment

precedents. Pet. App. 21a (explaining that MIT has not

“forfeited its right to make or allow speech disfavored by

the government by receiving federal funds for programs

or activities unrelated to the speech at issue here” (citing

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

570 U.S. 205, 218 (2013))).

4. There is no circuit split. The three decisions on

which petitioners rely—Fennell v. Marion Independent

School District, 804 F.3d 398 (5th Cir. 2015); Zeno v.

Pine Plains Central School District, 702 F.3d 655 (2d

Cir. 2012); and Bryant v. Independent School District

No. I-38 of Garvin County, 334 F.3d 928 (10th Cir.

2003)—do not even mention the First Amendment,

much less offer a “reasoned decision[]” about the

interplay between that Amendment and Title VI.

Pet. 28-30; see Pet. 24. They simply held that the

plaintiffs in those cases made out deliberate-indifference

claims based on blatant and actionable racial

harassment.

Each of those cases, moreover, would almost

certainly come out the same way in the First Circuit.

The First Circuit recognized in this case that the English

language contains “a litany of epithets and tropes widely

understood as expressions of religious or racial animus”

that would be actionable under Title VI. Pet. App. 23a.

The speech in Bryant, Fennell, and Zeno was explicitly

and unapologetically racist, and hence would be

actionable under the First Circuit’s standard. In

Bryant, “racial slurs, epithets, swastikas, and the letters

‘KKK’ [were] inscribed … in notes placed in African

American students’ lockers and notebooks.” 334 F.3d at

931-32. In Fennell, the plaintiffs were repeatedly “the

target of racial epithets and slurs,” and a noose was left

near one plaintiff’s car. 804 F.3d at 402-04. And the

plaintiff in Zeno likewise endured racial slurs and taunts,

including “references to lynching.” 702 F.3d at 659-61.

Each case involved plainly harassing conduct targeted

at specific individuals; none involved anything arguably

resembling “political opinion[s] on a matter of public

concern.” Pet. App. 27a. Petitioners’ claim that the

decision below would “immunize” the harassment

alleged in Bryant, Fennell, and Zeno, Pet. 29, is flat

wrong.

Petitioners also assert a “fundamental inconsistency

between the Executive Branch and the First Circuit.”

Pet. 35.

But petitioners’ cited authority—the

Department of Education’s May 7, 2024 Dear Colleague

Letter—says otherwise: “Nothing in Title VI or

regulations implementing it requires or authorizes a

school to restrict any rights otherwise protected by the

First Amendment to the U.S. Constitution.” Dear

Colleague Letter, supra p. 30, at 2.7

III. Adopting Petitioners’ Arguments Would Result

in Suppression of Political Speech on University

Campuses.

Although this case concerns speech about Israel and

Palestine, petitioners’ arguments are not limited to that

issue but extend to all types of campus speech across the

political spectrum. The implications are troubling. If

The Department articulated the same principle in 2003. See Office

for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter on the

First Amendment (July 28, 2003), https://bit.ly/4bY9Zid (“OCR’s

regulations are not intended to restrict the exercise of any

expressive activities protected under the U.S. Constitution…. [or]

regulate the content of speech.”).

petitioners’ first argument succeeds, a university may

be liable even if the speech at issue is facially neutral as

to any protected characteristic, and even if no speaker

harbored a discriminatory purpose. If the second

succeeds, then the federal government could, consistent

with the First Amendment, force universities to forfeit

all federal funds unless they censor pure political

advocacy on a matter of public concern. Combine the

two and the rule is this: a university must discipline its

students for engaging in core political speech whenever

other students experience those opinions as

discriminatory, even if the speech is not racist on its face

and even if the student has no intent to discriminate.

That rule would create a serious chill on campus free

speech. “The classroom,” this Court has said, “is

peculiarly the ‘marketplace of ideas,’” where future

leaders are “trained through wide exposure to that

robust exchange of ideas which discovers truth ‘out of a

multitude of tongues, [rather] than through any kind of

authoritative selection.’” Keyishian v. Bd. of Regents,

385 U.S. 589, 603 (1967) (citation omitted). But under

petitioners’ proposed rule, university administrators

would have no choice but to stamp out all speech, even

well-intentioned political speech, that other students

perceive as creating a hostile environment based on

race, color, or national origin (or, in light of Title IX’s

similar wording, based on sex). Speech advocating or

opposing racial preferences in college admissions,

removal of illegal immigrants, transgender rights, or

many other policies on issues of public concern would be

punished and censored. After all, even if such speech is

well-intentioned political speech, other students might

experience it as creating a hostile environment based on

race or sex—which, under petitioners’ proposed rule,

would be enough to expose the university to liability.

The Court should not adopt such a speech-suppressive

rule in the name of Title VI.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

SIMON A. DE CARVALHO

JENNER & BLOCK LLP

353 North Clark Street

Chicago, IL 60654

(312) 222-9350

ADAM G. UNIKOWSKY

Counsel of Record

ISHAN K. BHABHA

LAUREN J. HARTZ

JENNER & BLOCK LLP

1099 New York Avenue, NW

Suite 900

Washington, DC 20001

(202) 639-6000

aunikowsky@jenner.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.