DOJ’s Lawsuit Against UCLA Flagrantly Violates the First Amendment
In late February, DOJ’s Civil Rights Division sued the University of California’s Los Angeles campus. The Division alleges that because of how UCLA handled a student encampment and other campus protests about the Israel-Hamas War, as well as harassment certain Jewish professors faced, UCLA violated federal law prohibiting employment discrimination. The lawsuit also alleges that UCLA’s complaint system is ineffective at preventing and responding to discrimination and harassment that Jewish UCLA staff face.
The lawsuit appears to be based on a relatively new legal theory: that campus protests can be so offensive that they constitute discrimination against college employees. According to this theory, if a university knows about the offensive nature of the protests and permits them anyway, the university violates federal law prohibiting such discrimination. Bringing an employment discrimination case based on this legal theory requires an incredible amount of care and nuance. The First Amendment protects the ability of students and faculty to protest on a college campus. So, for this theory to work, a careful balance between anti-discrimination law and the First Amendment needs to take place.
But the Civil Rights Division under this leadership team has the care and nuance of a bull in a China shop. The lawsuit that the Division filed in court against UCLA is the latest example.
In its eagerness to sue UCLA, the Division barely attempted—and utterly failed—to respect the boundaries of the First Amendment. It even contradicted statements in a Statement of Interest filed under the current administration explaining the balance between employment antidiscrimination law and the First Amendment.
I know, because I was one of those attorneys who helped write the Statement of Interest.
For years, I was a career trial attorney in the Civil Rights Division’s Employment Litigation Section, which enforces Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on race, color, national origin, religion, and sex, including sexual orientation, gender identity, and pregnancy. While I worked in ELS, one issue I examined was the intersection of Title VII and the First Amendment. For example, I helped write a Statement of Interest filed in Garrett v. City University of New York which, like the UCLA suit, involved protests about the Israel-Hamas War on the campus of Hunter College filed by a Jewish employee at the school.
In addition, I helped the ELS team investigate UCLA before I resigned in May 2025. I wish to make clear, however, that my views about the UCLA lawsuit described here are not based on my participation in the investigation, but rather they are based solely on the Division’s public filing in February. Nor do my views necessarily express any legal opinions I may have given during my work related to that investigation.
From my time as a career Division attorney analyzing the intersection of Title VII and the First Amendment, I can explain how those two laws are supposed to coexist—and how the Division’s lawsuit against UCLA virtually ignores the requirements of such coexistence.
The First Amendment and Title VII
Let’s start with the basics: the First Amendment protects freedom of speech from government restrictions. This freedom exists in schools and the community alike. Political speech receives the “maximum” First Amendment protection. The speech of academics on matters of public concern is also a “special concern” of the First Amendment, which the Court has called academic freedom. In a decision issued last month, the Court likewise said that the First Amendment does not allow the government to dictate what opinion may be expressed on a subject, known as viewpoint discrimination. The Court has similarly gone out of its way time and again to emphasize that freedom of speech includes the freedom to say things that others find offensive, including in educational settings.
Meanwhile, among other things, Title VII prohibits a hostile work environment. A hostile work environment exists when the workplace is permeated with discriminatory harassment that is severe or pervasive enough to alter the conditions of the victim’s employment. The “severe or pervasive” standardIt is a very high standard to meet. For example, some courts have ruled that the one-time use of a racial slur is not severe enough to create a hostile work environment. To be pervasive, the harassment needs to happen very often, such as multiple times a week for multiple weeks.
If, at this point, you are thinking that the First Amendment (which protects freedom of speech, even when the speech is offensive) and Title VII (which prohibits sufficiently offensive harassment at work) conflict with one another, you would be correct. They can. And because the Constitution is the highest law of the land, to the extent there is ever any conflict with federal law, the Constitution is supposed to win out.
So, are government workplaces doomed to be bastions of offensive behavior, all in the name of protecting free speech? Well, no. Government employers are still allowed to prohibit hostile work environments. The key is to implement rules that regulate behavior generally, regardless of who the speaker is or the specific viewpoint that their speech expresses. With carefully crafted policies, employers can respect the First Amendment and obey Title VII.
Cases involving campus protests about the Israel-Hamas War offer what this careful balancing looks like, when done correctly. On the one hand, courts have held all sorts of protest activity protected by the First Amendment: things like demonstrating on sidewalks or making speeches expressing disagreement about the war. These kinds of activities are probably what most people think of when they think about the right to freedom of speech.
On the other hand, courts have also held that universities may enforce general rules regulating how students are supposed to express themselves. As long as such rules are about preventing student conduct that disrupts the learning environment, rather than regulating what students can or cannot say, the rules do not violate the First Amendment. So, though universities cannot ban students from expressing disagreement about the war, they can still enforce rules like prohibiting the blocking of building entrances or disrupting classes.
The UCLA Complaint
These careful lines are laid out in the Garrett Statement of Interest. But the Civil Rights Division contradicted many of them in its UCLA complaint.
For one thing, the Civil Rights Division’s complaint alleges there was a hostile work environment based on race, national origin, and religion because of, in part, campus events that espouse views it disagrees with. It takes issue with one lecture simply because the speaker shouted the phrase “Free Palestine” and another because the lecture called Zionism a form of racism. And it singles out a pro-Palestinian march on campus only because it happened close in time after the October 7th Hamas attacks. The complaint makes no allegation that these lectures or marches broke any campus rules or otherwise disrupted campus activities. Instead, the Division simply disfavors the messages that they expressed.
For another thing, the complaint runs roughshod over the First Amendment’s protection of academic freedom and protection against viewpoint discrimination. It highlights one professor’s “anti-Israel” views and another professor’s law review article praising the encampment. The complaint also highlights that members of a promotional board supported the Boycott, Divestment, Sanctions movement and that certain campus organizations also called for boycotts of Israel. The Division effectively argues that it is unlawful to have certain viewpoints, in the name of enforcing Title VII.
Admittedly, the complaint also includes allegations of protestor conduct that, if true, the First Amendment would not protect. For example, the complaint alleges several instances of swastikas graffitied on campus property. Because UCLA allegedly had rules banning all graffiti, regardless of what the graffiti says, and because it is clearly offensive, such allegations could support a hostile work environment claim while respecting the First Amendment. The complaint also has allegations of protests violating UCLA’s “time, place, manner” rules, which are rules about when, where, and how protestors may demonstrate, regardless of what the protests are about. Such allegations may also support a hostile work environment claim without violating the First Amendment to the extent protestors said or did anything offensive under Title VII.
If the Civil Rights Division limited its claims to allegations like these, its complaint would be more modest but constitutionally sound. But this DOJ is not known for either its modesty or its respect for the constitution.
The First Amendment’s limits matter—especially on a college campus.
Without such limits, the Trump administration could simply banish views it disfavors from classrooms to impose its own views. The First Amendment matters not just for freedom of speech but for advancing the goals of Title VII, too. Title VII requires employees to treat each other with mutual respect regardless of their identities. This requires learning how to participate in dialogue across lines of difference—a skill many people learn for the first time on a college campus.
Perhaps most powerful of all, however, is what many of UCLA’s Jewish faculty and staff themselves have to say about the lawsuit.
In an open letter addressed to the Attorney General, Assistant Attorney General for Civil Rights, and university leaders, they say they stand “absolutely united” in their “vehement opposition to this ill-conceived lawsuit.” They describe the lawsuit as an “attack on free speech and academic freedom.” They also describe the alleged harassment as “students expressing their First Amendment-protected viewpoints, which the university is required by federal and state law to protect rather than punish.” They urge DOJ to drop the lawsuit and for UCLA to defend itself. The letter had 143 signatories as of March 18. While a different Jewish organization on UCLA’s campus reportedly expressed support for the lawsuit, it is nevertheless striking that the letter had so many signatories from the very people whom the lawsuit is ostensibly supposed to serve.
When new attorneys take the oath of office upon joining DOJ, they promise to support and defend the Constitution. As the letter signatories point out, this DOJ has instead launched a full-frontal attack on the Constitution’s First Amendment.
It is now up to the courts to decide how to carefully balance the First Amendment and Title VII on UCLA’s campus. I hope and expect they will safeguard the First Amendment rights of UCLA students from DOJ’s attack.
Ejaz Baluch served as a Senior Trial Attorney in the Employment Litigation Section of the Civil Rights Division from 2019 to 2025 and currently works as a Senior Staff Attorney for Asian Americans Advancing Justice – AAJC. The views expressed here are his own and do not necessarily represent those of AAJC.
