Title VI Does Not Compel Universities to Suppress Protected Political Speech, and Campus Liability Turns on Deliberate Indifference

Introduction

StandWithUs Center for Legal Justice v. MIT returns to the First Circuit on a petition for rehearing and rehearing en banc after the panel’s 2025 decision, StandWithUs Ctr. for Legal Just. v. Mass. Inst. of Tech., 158 F.4th 1 (1st Cir. 2025). Plaintiffs—StandWithUs Center for Legal Justice and two individual plaintiffs—advanced Title VI claims (42 U.S.C. § 2000d) alleging that MIT, a recipient of federal funds, responded inadequately to antisemitic harassment on campus in the wake of charged geopolitical events and campus protests.

The rehearing posture matters: the court’s January 21, 2026 order denies both panel rehearing and rehearing en banc. Judge Dunlap concurs in the denial, using the vehicle to flag (i) unresolved doctrinal questions at the “intersection of the First Amendment and Title VI,” (ii) concerns about the panel’s Rule 12(b)(6) treatment of whether certain protest slogans could plausibly support an inference of antisemitic animus, and (iii) a preference for resolving the appeal on the narrower ground that MIT was not deliberately indifferent.

Summary of the Opinion (Order and Concurrence)

The court denies the petition for rehearing and the petition for rehearing en banc. Judge Dunlap concurs, explaining that although he believes the panel “went further than it ought to have gone” in addressing whether the alleged speech was plausibly antisemitic, the issues raised do not satisfy the standards for en banc rehearing under Fed. R. App. P. 40(b)(2), (c).

The concurrence underscores three themes:

First Amendment constraints: Title VI cannot be construed to require universities to “quash protected speech,” especially political speech on matters of public concern on campus.
Open doctrinal questions: Even if protected speech is categorically exempt from Title VI as “harassment,” it remains unsettled whether such speech may still be used as evidence of animus supporting a Title VI claim.
Narrower disposition preferred: The case could (and, in Judge Dunlap’s view, should) have been resolved solely on the “already strict” deliberate-indifference standard, as the district court did in StandWithUs Ctr. for Legal Just. v. Mass. Inst. of Tech., 742 F. Supp. 3d 133 (D. Mass. 2024).

Analysis

Precedents Cited

1) First Amendment: Content-based regulation and public concern protection

Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018): cited for the baseline rule that the First Amendment prohibits government restrictions on speech based on its message, ideas, subject matter, or content. The concurrence uses it to frame why Title VI must be applied cautiously when plaintiffs’ theory would require suppression of political viewpoints.
Snyder v. Phelps, 562 U.S. 443, 458 (2011): cited for “special protection” afforded to speech on matters of public concern—even if outrageous. This supports the panel’s premise (endorsed by the concurrence) that universities are not required by Title VI to suppress protected protest speech.
Honeyfund.com Inc. v. Governor, 94 F.4th 1272, 1282 (11th Cir. 2024); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 (2001); DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 596 (5th Cir. 1995): cited as cautionary authority emphasizing the constitutional risks of anti-harassment regimes morphing into viewpoint-based speech restrictions. Their role here is less as controlling law and more as constitutional “guardrails” informing how Title VI should be interpreted.

2) Title VI campus harassment and the “deliberate indifference” frame

StandWithUs Ctr. for Legal Just. v. Mass. Inst. of Tech., 742 F. Supp. 3d 133 (D. Mass. 2024): the district court’s narrower holding—MIT was not deliberately indifferent—featured prominently in Judge Dunlap’s suggestion that the panel should have affirmed on that ground alone.
Gartenberg v. Cooper Union for the Advancement of Sci. & Art, 765 F. Supp. 3d 245 (S.D.N.Y. 2025): cited twice and treated as an emerging analytical model. Judge Dunlap highlights Judge Cronan’s approach for harmonizing Title VI with the First Amendment: “pure speech” on public concerns generally does not constitute actionable harassment, but speech may be relevant to discriminatory motive; liability should rest on unprotected conduct producing a hostile educational environment coupled with deliberate indifference.
Kestenbaum v. President and Fellows of Harvard Coll., 743 F. Supp. 3d 297 (D. Mass. 2024): cited to demonstrate that similar Title VI antisemitism claims have survived motions to dismiss elsewhere, reinforcing the concurrence’s caution about resolving “animus” disputes too aggressively at Rule 12(b)(6).

3) Pleading standards: Rule 12(b)(6) and reasonable inferences

Douglas v. Hirshon, 63 F.4th 49, 54-55 (1st Cir. 2023): for the proposition that courts must accept well-pled facts as true and draw reasonable inferences in plaintiffs’ favor at the motion-to-dismiss stage.
SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010): for the requirement that allegations be more than vague or conclusory.
Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 45 (1st Cir. 2013): for the idea that a claim survives if plausible, even if not the most plausible alternative.

4) The concurrence’s “judicial minimalism” argument

United States v. Tsarnaev, 96 F.4th 441, 446 (1st Cir. 2024) (quoting PDK Lab'ys Inc. v. U.S. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in judgment)): cited for the principle that courts should not decide more than necessary. Judge Dunlap uses it to critique the panel’s reach into whether slogans were plausibly antisemitic when deliberate indifference could have resolved the case.

5) Claimed conflicts raised by petitioners (and rejected)

Healy v. James, 408 U.S. 169 (1972): invoked by plaintiffs; the concurrence deems it not on point because it addressed (in dicta) constraints on disruptive conduct, not the First Amendment/Title VI interplay central here.
Zeno v. Pines Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012) and Feminist Majority Found. v. Hurley, 911 F.3d 674 (4th Cir. 2018): plaintiffs cited them as conflicting authority; the concurrence characterizes them as factually distinguishable rather than doctrinally incompatible.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998): raised to argue the panel improperly emphasized intent rather than objective effect. Judge Dunlap responds that Oncale still requires showing class-based hostility/motivation, while “severity” is judged from a reasonable person in the plaintiff’s position.

6) Additional authorities informing the concurrence’s view of antisemitism context

Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703, 710 (9th Cir. 2010): quoted (through Gartenberg) for the distinction between public-concern speech using generally accepted channels and “targeted, personal harassment.”
Stephen E. Sachs, Zionism and Title VI, 139 Harv. L. Rev. Forum 50, 64-72 (2025): cited to support the proposition that contextual evidence may bear on whether anti-Zionist expression functions as antisemitic animus in particular factual settings.
Letter from George Washington to the Hebrew Congregation in Newport, R.I. (Aug. 18, 1790): cited to situate antisemitism as a historic and persistent problem, while reinforcing the normative stakes of equal belonging.

Legal Reasoning

Judge Dunlap’s concurrence is not a merits opinion, but it provides a structured critique of how courts should navigate Title VI claims involving protest speech:

Start with constitutional avoidance and the “protected speech” baseline. The concurrence agrees with the panel’s broad framing: Title VI cannot be read to require universities to suppress protected speech, particularly political speech on matters of public concern. This premise flows from standard First Amendment doctrine (e.g., Nat'l Inst. of Fam. & Life Advocs. v. Becerra; Snyder v. Phelps) and anti-harassment/speech cases warning against turning nondiscrimination rules into content-based censorship (e.g., Saxe; DeAngelis).
Identify the unresolved subsidiary issue: can protected speech be “evidence of animus” under Title VI? Even if “pure speech” cannot itself constitute actionable harassment, Judge Dunlap highlights that protected speech might still be probative of motive—an evidentiary, not liability-triggering, use. He notes the panel “does not squarely address this question” and signals that Gartenberg offers a plausible roadmap: assess speech for motive, then require non-protected conduct plus hostile-environment elements and deliberate indifference.
Apply Rule 12(b)(6) faithfully when plaintiffs plausibly allege antisemitic animus. Judge Dunlap’s central disagreement is procedural and inferential: at the pleading stage, plaintiffs get reasonable inferences. He questions the panel’s conclusion that chants like “Palestine will be free, from the river to the Sea!” and “There is only one solution! Intifada revolution!” were not plausibly antisemitic in the alleged context. Drawing on Douglas v. Hirshon and Evergreen Partnering Grp., Inc. v. Pactiv Corp., he suggests that the complaint plausibly supported an inference of animus, particularly given allegations about timing, surrounding incidents, and other campus conduct described in the panel opinion.
Prefer narrow grounds: deliberate indifference provides a cleaner resolution. The concurrence advances a judicial-minimalism critique rooted in United States v. Tsarnaev (quoting PDK Lab'ys Inc. v. U.S. DEA): where deliberate indifference independently defeats the claim, courts should avoid broader pronouncements about the meaning of contested political slogans and whether they are “antisemitic.” Judge Dunlap notes that Gartenberg itself indicates First Amendment concerns may counsel an “even more limited application” of an already strict deliberate-indifference test.
Why rehearing en banc is still unwarranted. Despite these concerns, Judge Dunlap concludes the panel opinion is “sufficiently open-ended” to permit future doctrinal development, and he views the case as tightly bound to its pleadings and facts. He also rejects asserted conflicts with Healy v. James, Zeno v. Pines Plains Cent. Sch. Dist., Feminist Majority Found. v. Hurley, and Oncale v. Sundowner Offshore Servs., Inc..

Impact

Although the January 21, 2026 document is an order denying rehearing, Judge Dunlap’s concurrence signals practical and doctrinal implications for future Title VI campus-harassment litigation in the First Circuit:

Universities’ regulatory posture: Institutions may cite the panel’s core proposition (endorsed here) that Title VI does not compel them to suppress protected political speech—even when that speech is offensive or perceived as hateful—so long as they address actionable harassment without adopting viewpoint-based restrictions.
Pleading strategy and evidentiary framing: Plaintiffs alleging antisemitic harassment will likely emphasize (consistent with the concurrence’s critique) context and cumulative facts supporting plausible inferences of discriminatory animus at the motion-to-dismiss stage, while also identifying non-protected conduct that can constitute harassment and tying institutional responses to deliberate indifference.
An open doctrinal door: The concurrence explicitly leaves unresolved whether protected speech may serve as evidence of discriminatory motive under Title VI. That “subsidiary question” invites future panels to consider an approach akin to Gartenberg v. Cooper Union for the Advancement of Sci. & Art.
Judicial caution in defining antisemitism/anti-Zionism boundaries: By criticizing the panel’s reaching a “dubious conclusion” about the antisemitic plausibility of contested slogans at Rule 12(b)(6), the concurrence warns against courts “resolv[ing] through discourse, not judicial fiat” an ongoing societal debate. Future opinions may respond by deciding cases on narrower grounds (e.g., deliberate indifference) and avoiding categorical readings of political phrases divorced from pleaded context.

Complex Concepts Simplified

Title VI (42 U.S.C. § 2000d): A federal statute prohibiting discrimination (race, color, national origin) in federally funded programs. In the campus setting, plaintiffs often use Title VI to challenge discriminatory harassment and an institution’s response to it.
First Amendment “protected speech”: Speech, especially about public issues, is generally protected from government punishment based on its content or viewpoint—even when many find it offensive. Public universities are state actors; private universities’ Title VI obligations can still raise constitutional concerns when enforcement theories would effectively require viewpoint suppression.
Hostile educational environment: A legal theory that unlawful harassment can be so severe or pervasive that it denies equal access to education. The concurrence emphasizes that courts must ensure the theory does not become a backdoor to punishing political expression.
Deliberate indifference: A demanding liability standard: the institution’s response must be clearly unreasonable in light of known circumstances. Judge Dunlap suggests this stringent standard—particularly when First Amendment concerns are present—can resolve cases without adjudicating disputed meanings of political speech.
Rule 12(b)(6) plausibility: At the motion-to-dismiss stage, courts do not weigh evidence; they ask whether the complaint plausibly states a claim. Reasonable inferences generally go to plaintiffs, which is why Judge Dunlap questions declaring “not plausibly antisemitic” as a matter of pleading.
Speech as “evidence of animus” vs. speech as “actionable harassment”: Even if speech cannot itself be punished (because it is protected), it may still help show why someone acted (motive). The concurrence flags this as an important but unanswered doctrinal issue.

Conclusion

The First Circuit’s denial of rehearing leaves in place the panel decision in StandWithUs Ctr. for Legal Just. v. Mass. Inst. of Tech., while Judge Dunlap’s concurrence frames the next set of questions for Title VI campus-harassment doctrine: courts must respect the First Amendment’s protection for political speech; they should be cautious about resolving contested interpretations of slogans at the pleading stage; and they may often—consistent with United States v. Tsarnaev—prefer the narrower, sturdier ground of deliberate indifference. Most importantly, the concurrence spotlights a key open issue for future litigation: whether protected speech, while not itself actionable harassment, may nevertheless be used as evidence of discriminatory animus under Title VI.