Thinking Like a Lawyer About Campus Antisemitism

As we all know, the major pretext on which Trump is attacking universities like Harvard and Columbia is the allegation that they have permitted their campuses to turn into hotbeds of antisemitism, in violation of federal antidiscrimination laws. The latest escalation in these allegations is that the DOJ appears to be planning to accuse colleges of essentially committing fraud against the government by accepting federal funds while allegedly violating antidiscrimination law.

But it's too easy to conflate a bunch of handwaving about positions that those in office disagree with and actual violations of the law. So it's time to think like a lawyer and start to draw the important distinctions.

By Way of Preface: Fuck Antisemites

Let's get a few obvious points out of the way first. Specifically, three of them.

1. Antisemitism is bad. Antisemites are bad. Fuck all of those assholes. In the immortal words of the Dead Kennedys: Nazi Punks Fuck Off.

2. Universities are not obliged, legally speaking (i.e. by federal antidiscrimination law), to punish all bad speech. In fact, many of the very same people who are all of a sudden concerned about antisemitism are the same as the people who spent years insisting, for example, that it was perfectly ok for professors to say the n-word in the classroom. What universities are legally obliged to do is to provide their educational programs on an equal basis.

3. Donald Trump doesn't actually care, in his heart of hearts, about antisemitism. If he did care about antisemitism, he wouldn't have staffed his administration with a bunch of people who hang out with antisemites, nor would he have publicly said about Chuck Schumer, the Jewish Senate minority leader, "He's become a Palestinian. He used to be Jewish. He's not Jewish anymore." And then of course there's Elon and all the quite openly pro-Nazi January 6 insurrectionists he pardoned. Frankly, I think Donald Trump is probably an antisemite himself. But even if he isn't, his behavior has given nobody any real reason to think that he disapproves of the antisemitism of others, except when it is convenient for something else he wants to do, like destroy universities.

Antisemitism vs Disagreement vs Discrimination

Donald Trump's strategy is to conflate all of the four following categories together, so that he can accuse every university that had a protest against the war in Gaza of being a hotbed of antisemitism.

1. Speech that clearly isn't antisemitic at all.

2. Speech that is debatably antisemitic.

3. Speech that is antisemitic, but does not deny any Jewish student equal access to education or other university services.

4. Conduct (or, I guess, some kinds of speech) that actually does deny some Jewish student equal access to the things that universities provide.

We must not permit him to do that. Let me say a little bit more about what I mean by each of the four categories.

Category 1: speech that clearly isn't antisemitic at all.

Merely protesting the war in Gaza is not antisemitic. Criticizing the government of Israel is not antisemitic. Accusing the government of Israel of genocide is not antisemitic. Universities have no obligation, and indeed, have no right by the ordinary standards of academic freedom (and, for public universities, the First Amendment) to punish this speech.

Here, some readers might object: that protest and that criticism might be motivated by antisemitism. It might be, for example, that some people choose to protest Israel's misconduct and not someone else's misconduct because they judge Israel by harsher standards than every other government, and they might judge Israel by harsher standards than every other government because they dislike Jewish people.

That might be true. But that is true of a lot of other kinds of nonetheless permissible speech. For example, a student might take an anti-immigration position in a classroom debate because they subscribe to a stereotype that associates immigration with Latinos, and hold bigoted views about Latinos. That doesn't mean that universities are entitled to ban anti-immigration viewpoints on their campuses. The same goes for the criticism of Israel.

Category 2: sometimes there’s a debate about whether some ideas are antisemitic

Sometimes, people say stuff in the course of protesting the war in Gaza that other people allege has an antisemitic meaning. This typically involves a wide variety of claims about the right of the Palestinian people to territory, such as "from the river to the sea," which can be interpreted as the claim that Palestinians ought to control the entire territory of Israel, and thus, on some interpretations, to displace the Jewish people that live there. Other people, however, offer different interpretations of that statement. For example, it could just mean that both Palestinians and Jewish people ought to have a right to live freely and equally on that territory, which wouldn't be antisemitic at all.

Similarly, there are debates about whether denying that Israel has a right to exist is antisemitic or not. On the one hand, some people say it is antisemitic, because that position amounts to denying Jewish people their traditional homeland as well as denying that Jewish people have a right to form a state. On the other hand, some people say that it is not antisemitic, because the position is a consequence not of animus against Jewish people but an objection to the specific history of the formation of Israel by displacing other innocent people (i.e., the Palestinians), and/or because it is a consequence of a general rejection of ethno-national politics. One can hold the not-antisemitic-at-all belief that no ethnic group should have a state of its own, and legitimately apply that belief to Israel.

Because it is debatable whether or not these positions are antisemitic, I take it that they are within the realm of stuff that universities can debate. Again, this is fairly normal for universities. It's debatable whether or not the construct of IQ is racist, but plenty of people in psychology departments study it. Universities don't get to censor student speech just because some uncharitable listeners might interpret it as antisemitic.

Category 3: speech that is antisemitic, but is just speech, by students

There have undoubtedly been actual instances of antisemitic speech. I know there have been: I've seen it with my own two eyes (thankfully, not at Northwestern). A while back, I happened to be on the campus of another university, and I saw someone dressed up in a frankly revolting costume obviously meant to trade on antisemitic stereotypes---think hat, fake nose, etc.

Go back to what I said at the beginning of those post: fuck those people. Fuck that guy specifically. That kind of antisemitism is terrible, and the rest of us ought to shun and scorn and condemn the people who engage in it. I'm not a violent person, but I can't say that I'd be sad if someone punched fake nose guy right in aforesaid fake nose.

That being said, it's far from obvious to me that universities have the right to punish such vile speech, at least if it's by students. (Frankly, it's also not obvious that this was a student. I wouldn't put it past the far right in this country to send provocateurs to do that kind of behavior at student protests.) Students say bigoted things all the time, and free speech advocates have often argued that universities have an obligation to protect their right to do so. Employees are different because they speak for the institution at least sometimes in a way that students do not. But we're not talking about employees. We're talking about students.

For example, FIRE argued that Yale should not have punished the frat that notoriously went around chanting "no means yes, yes means anal," which is obviously incredibly sexist. Whether or not you agree with FIRE's take on the Yale frat, there's an obligation of consistency to consider. Either we believe that universities are a site for the free expression of ideas, even offensive ones, or we don't. And once again, with respect to public universities in particular, there's also the First Amendment to consider. (Arguably, the Yale frat is an easier case for punishment, because a frat chant is an organized activity of an entity that gets lots of university privileges.)

Or, consider a more prosaic example. Suppose there's a classroom debate about immigration, and a student uses a slur for Mexicans beginning with "w" in arguing against immigration. A good professor obviously would remonstrate with that student, and make it clear that they run a classroom in which people from all backgrounds are equally welcome. But should the professor also refer that student to the dean of students for punishment? Many of us would say "no." As a group of Jewish students put it in an op-ed in Forward, "That we do not agree with everything our classmates might say is beside the point; they deserve the same First Amendment rights we do. Free expression, including unpopular speech, is a cornerstone not just of our universities, but of our democracy."

Category 4: real-life discrimination against Jewish students

Finally, there have been some allegations of actual actions that deprived Jewish students of equal access to education. For example, it has been alleged that protestors at UCLA "created a 'Jew Exclusion Zone'" and demanded agreement with their rejection of Israel to enter certain spaces.

There a bit of ambiguity and fuzziness in this example about the difference between being against Israel and being antisemitic---I'm not sure whether "Jew Exclusion Zone," which appears in the linked news story, was ever said by the protesters or whether that was someone else's interpretation. The preliminary injunction against UCLA blurs the line between anti-Jewish and anti-Israel by arguing that the plaintiffs understood themselves as having a religious obligation to support the state of Israel, such that creating a no-Zionist zone or something would amount to discrimination against Jewish belief. For present purposes and for the sake of argument I'm willing to assume that complication away and act as if at least one protester told at least one Jewish person that their Jewish identity was relevant to their being excluded from the space in question.

On that factual assumption, I agree with Donald Trump: universities have an obligation (likely an enforceable one under Title VI, though I defer to people with more expertise in the underlying caselaw on how much obligation they have to control third party behavior before claiming certainty there) to stop that sort of thing. If some students have a harder time getting to class because they are Jewish, that amounts to the denial of equal access to education, and a university that fails to enforce its antidiscrimination policies in such a situation is, ipso facto, culpable in antisemitic discrimination. That is unacceptable.

It is only in this fourth category of student behavior, where Jewish students are actually being denied equal access, that universities have an obligation to step in.

Moreover, legally speaking, as I explained in an earlier post, even for these category 4 incidents the government must first offer universities due process (i.e., a hearing) before taking funding away, and can only take funding away from the specific part of the university that violated antidiscrimination law. Taking away research funds from a medical school, without a hearing, because of the failure to discipline a student protest at the library half a mile away, does not comply with the law.

Actually Fighting Antisemitism Requires Specificity, Clarity, and Evidence

Here's the upshot. The Trumpist strategy is to run together all of categories 1-4. Because a few category 4 things allegedly happened, any time anyone protests the war in Gaza, Trump takes it as license to lump that speech together with creating a "Jew Exclusion Zone" and start revoking university grants and deporting people for writing op-ed's. But that conflation is dishonest, and we must fight it.

Specifically, before we let Trump punish universities for their alleged antisemitism, we must make him and his "task force" (a) describe with particularity the specific behavior that actually denied some Jewish student equal access to university services---the category 4 behavior, not categories 1, 2, or 3; (b) describe with particularity the way in which the university was obliged to control that behavior, if it was carried out by a student or some other third party, and (c) provide the actual evidence for both the behavior and the university's failure to control it.

If we do not make those demands, we've lost before we've started, because we effectively concede to Trump the outrageously antidemocratic and unconstitutional notion that merely permitting one's students to protest a war is sufficient basis for the federal government to punish a university. And if we concede that, we essentially let him light the First Amendment on fire: that both permits Trump to censor a university's own speech, and permits him to forcibly recruit universities as agents of the federal government to censor student speech.