The Volokh Conspiracy
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Department of Education Decision May Pressure Universities to Restrict Some Anti-Israel Speech
The Office for Civil Rights decision is in some ways opaque and equivocal, but the message to universities seems pretty powerful -- such decisions about enforcing Title VI of the Civil Rights of Act may turn on whether the university tolerates certain criticisms of Israel that OCR has now labeled "anti-Semitic."
[1.] Two weeks ago, the Department of Education's Office for Civil Rights concluded that Rutgers might have violated Title VI by not properly dealing with alleged discrimination against Jews by a pro-Palestinian student group. In 2014, the Office had decided in favor of Rutgers; that decision was appealed, and the recent decision reversed it. The specific issue here had to do with whether the student group had charged certain attendees at an event $5 in part because they appeared to be Jewish, while waiving the fee for students who didn't so appear -- the matter was mostly a factual inquiry, and the decision on appeal held that the earlier decision didn't properly evaluate the evidence.
But in the process, the Office (in a decision signed by Assistant Secretary for Civil Rights, Kenneth L. Marcus, who urged such a step in a 2011 article) officially adopted the State Department definition of "anti-Semitism" -- something that Secretary of Education Betsy DeVos expressly declined to do in September 2017, when responding to a request from Congressman Brad Sherman. Here are excerpts from the relevant passage:
Title VI prohibits discrimination on the basis of race, color, or national origin; it does not address discrimination on the basis of political opinions. An individual's pro-Israel viewpoint itself -- or, for that matter. any viewpoint on the policies of the state of Israel, the Israeli-Palestinian conflict, or related issues -- is not protected by Title Vl. However, as OCR has repeatedly indicated previously, discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics -- which may include discrimination against Jewish or Muslim students -- is discrimination on the basis of national origin or race in violation of Title Vl. In determining whether students face discrimination on the basis of actual or perceived Jewish ancestry, we rely where appropriate upon widely established definitions of anti-Semitism. The International Holocaust Remembrance Alliance (IHRA) working definition is widely used by governmental agencies, including the U.S. Department of State, and is used by OCR as well. It provides as follows:
"Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.
"Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to: …
"* Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
"* Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation….
"* Drawing comparisons of contemporary Israeli policy to that of the Nazis…."
The letter does say, in a footnote, that,
The extent to which the expression of such opinions is otherwise protected by the First Amendment or other principles of law is beyond the scope of this letter. While OCR does not enforce the First Amendment, OCR has made clear that it will interpret the laws and regulations it does enforce, including those that prohibit discriminatory harassment, consistent with the First Amendment. It is not necessary to delve into the complexities of such issues on the present facts, however; suffice it to say for now that OCR's enforcement activity will not prohibit what the First Amendment allows or what Title VI does not proscribe.
And the letter doesn't specifically say that the statements that it labels anti-Semitism are forbidden by Title VI (for instance, on the theory that they create a "hostile educational environment" for Jewish students).
But the letter does expressly condemn certain criticisms of Israel in the context of describing how the federal government "determining whether students face [illegal] discrimination on the basis of actual or perceived Jewish ancestry." And it goes out of its way to do so; the factual question in this case was simply whether students where discriminated against because they were perceived to be Jewish. (There was evidence that the student group's decision to charge fees "was motivated by the sudden appearance of '150 Zionists,'" and the Office for Civil rights decision notes that "the characterization of a large number of people as such -- '150 Zionists' -- who 'just showed up' could have been based at least partially on a visual assessment, as opposed to individually polling all 150 such unexpected arrivals as to their views on the policies of the state of Israel. In other words, the visual perception of the presence of '150 Zionists' referenced in the email could have been rooted in a perception of Jewish ancestry or ethnic characteristics common to the group. In cases such as this, it is important to determine whether terms such as 'Zionist' are actually code for 'Jewish.'" One doesn't need the above definition of anti-Semitism to decide that identifying supposed "Zionists" based on whether they supposedly look ethnically Jewish, or are known to be ethnically Jewish, is discrimination based on ethnicity and thus potentially barred by Title VI.)
The message to universities, which understandably don't want to face OCR investigations -- and certainly don't want a finding that they are violating federal law -- is that it's dangerous to allow the criticisms of Israel identified in the letter, and that universities should try to do what they can to suppress them. (That would be particularly easy for private universities, which won't face the risk of First Amendment lawsuits if they suppress such speech, but would still face the risk of Title VI investigations and lawsuits if they don't suppress it.) Such pressure strikes me as a serious threat to First Amendment and academic freedom principles, notwithstanding the OCR's footnote.
[2.] But beyond just the constitutional question, I think this is an improper attempt to suppress legitimate debate about Israel. I myself generally support Israel, and I do think that much criticism of Israel is unfair and quite likely anti-Semitic. But what is the right view and what is the wrong view of the conflict in the Middle East should be a matter for academics and students to debate, without the federal government trying to influence the debate this way.
For instance, consider "denying the Jewish people their right to self-determination." Whether Jews as an ethnic group should have a right to self-determination should be as open to discussion -- whether from people who say "yes" or who say "no" -- as whether West Bank Palestinians should have such a right, or for that matter whether Basques, Kurds, Catalonians, Taiwanese, Falkland Islanders, Crimeans, Eastern Ukrainians, or Northern Cypriots should have such a right. Few people think that every "people" has a "right to self-determination" in the sense of a right to have their own independent country that they control; at the very least, that would be a highly contestable proposition. Special cases of that proposition, whether having to do with Jews or Palestinians, are equally contestable.
I think that on balance it's good that Israel exists and that it exists as a distinctively Jewish state. And I certainly think that, now that it exists, abolition of Israel as a separate country and its incorporation into any of its neighbors would be extraordinarily bad. But that is a subject that should be freely debated, without the shadow of possible federal enforcement falling on one or the other side.
The OCR's including "[a]pplying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation" is even more dangerous. There is no one standard of behavior that is "expected or demanded of any other democratic nation"; different people expect and demand different behaviors -- and there are often legitimate reasons to demand different behaviors of different nations, because the facts in each case are different.
We may often suspect that one of our adversaries is applying a double standard. Sometimes our suspicions may be justified. Sometimes they might stem from the natural human tendency to assume the worst about the motives of our adversaries. Sometimes they may stem from factual or moral disagreement about just what various countries are doing, or of what can be done about them.
And beyond that, few people actually closely investigate the behaviors of so many countries that we can confidently decide whether they are applying a double standard. Instead, people understandably usually focus their energies on one conflict rather than trying to learn about and talk about many different conflicts.
Likewise with the OCR's referring to "[d]rawing comparisons of contemporary Israeli policy to that of the Nazis." Most analogies to Nazis are overwrought; I certainly think that about analogies of Israeli policies to the Nazis. But people -- especially at universities -- should be free to debate such analogies, and free to criticize any government, whether of Israel, of the Palestinian territories, of Iran, of China, of Mexico, or anywhere else, without the fear of federal government action.
Again, the OCR letter doesn't expressly say that such statements are forbidden; it talks about "rely[ing] where appropriate" on the definition, and talks about how the examples "could, taking into account the overall context" constitute antisemitism; and the footnote acknowledges the truism that "OCR's enforcement activity will not prohibit what the First Amendment allows."
But when a government enforcement agency issuing a decision related to enforcement of the law, and interpreting the law's binding commands "[i]n determining whether" certain action is illegal, condemns such speech, the message seems pretty clear: This speech is perilous for you, universities, to tolerate.
