By Yael Lerman, Gadi Dotz, JNS
David Cole, a former ACLU legal director, made his claim at a House hearing on antisemitism on college campuses, showing no concern for Jewish students experiences.
The U.S. House Committee on Education and the Workforce convened a hearing on May 7 about antisemitism at college campuses beyond the Ivy League schools. The presidents of DePaul University, Haverford College and California Polytechnic State University were called to testify about their institutions’ persistent failures to protect Jewish students from rising antisemitism.
One witness stood out not for shedding light on the problem, but for embodying it: David Cole, the former legal director of the American Civil Liberties Union and professor at Georgetown University Law Center.
The ACLU has long styled itself as a staunch defender of free speech, famously backing the right of neo-Nazis in the late 1970s to march in Skokie, Ill., a town with a large percentage of Holocaust survivors.
But since the Hamas-led terrorist attacks in Israel on Oct. 7, 2023, the organization has increasingly positioned itself not as a neutral speech advocate but as a defender of pro-Hamas activists who often trample the rights and threaten the safety of Jewish students.
In recent years, and especially since the Hamas-led terrorist attacks in southern Israel on Oct. 7, 2023, the ACLU has openly opposed efforts to combat campus antisemitism. It criticized both U.S. President Donald Trump’s 2019 executive order targeting antisemitism in education and its 2025 update. On Nov. 1, 2023, the ACLU sent a letter to more than 650 colleges discouraging investigations into pro-Hamas demonstrations.
In 2024, it urged the U.S. Department of Education to reject the internationally recognized International Holocaust Remembrance Alliance (IHRA)’s working definition of antisemitism. More recently, the entity opposed the Antisemitism Awareness Act, a straightforward congressional bill that would require the Department of Education to consider that definition when reviewing antisemitism complaints.
While claiming to uphold free expression, the ACLU has gone out of its way to represent anti-Zionist groups like Students for Justice in Palestine at universities including the University of Florida, the University of Pittsburgh, Columbia University and the University of Michigan.
We found no comparable instance of the ACLU defending Jewish students whose rights, including the right to express their Jewish identity, were infringed by peers, faculty or administrators. As lawyers working with Jewish college students every day on these matters, we know there is, unfortunately, no shortage of such cases.
This brings us back to Cole’s appearance before Congress. Staying true to the ACLU’s recent posture, Cole used his opening remarks to argue that universities should tolerate antisemitic speech. As he said, “ … most antisemitic speech does not implicate Title VI at all. Therefore, a school committed to free speech should be tolerating it, not suppressing it as this committee would ask.”
That alone is jarring given the hearing’s intent. But it was consistent with the ACLU’s repeated defense of students chanting “From the river to the sea” and “Globalize the intifada,” rhetoric that many Jews experience as calls for their destruction.
Cole also likened the committee’s efforts to address campus Jew-hatred to “McCarthyism,” revealing a staggering disregard for the legal and lived experiences of students facing unlawful harassment. He insisted that antisemitic speech, while “lamentable,” is constitutionally protected and that Title VI of the Civil Rights Act does not prohibit it.
This is a misleading oversimplification. Speech that involves threats, targeted harassment or contributes to a hostile environment is not just subject to university codes of conduct but also triggers federal civil-rights protections.
Cole further confused the law by asserting that Title VI only protects students based on their “Jewish identity,” not support for Israel. But for most Jews, Zionism is a core element of their identity: religiously, ethnically or nationally. As DePaul’s president, Robert Manuel, noted during the hearing, “For many in our Jewish community, Israel is a core part of their identity.”
Attacks on Jews because of their connection to Israel are just as disqualifying as any other form of religious or ethnic targeting.
Cole also misstated the legal threshold for a hostile environment under Title VI. He wrongly claimed that speech must be “severe, pervasive and objectively offensive” to qualify. In fact, according to longstanding Education Department guidance, the standard is “severe or pervasive” conduct that limits or denies a student’s ability to participate in an educational program. The impact may arise from being excluded from events, silenced in classrooms and/or even afraid to walk on certain parts of the campus.
Finally, Cole mischaracterized the “deliberate indifference” standard for university liability. He suggested that simply holding a hearing or launching an investigation was enough to absolve a university. It is not. Schools that use procedural fig leaves to dodge meaningful discipline, and thereby allow antisemitism to fester, can and should be held accountable under federal law.
Indeed, many students have reported hostile environments precisely because of their universities’ indifference.
At Haverford, it took weeks to dismantle an encampment that administrators admitted posed a safety risk. At Cal Poly, a professor unleashed antisemitic vitriol on students attending a pro-Israel talk and still faces no consequences more than a year later. This kind of inaction is what the hearings were meant to expose and correct.
Cole’s legal gymnastics and the ACLU’s selective speech defense do little to protect and reassure Jewish students. If anything, they reinforce a climate in which pro-Hamas agitators feel emboldened and Jewish students feel abandoned. As Rep. Lisa McClain (R-Mich.) aptly told DePaul’s president, “You’ve got great policies, and you’ve got great lip service. The problem is you need action.”
