The Volokh Conspiracy
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Is Restricting Pro-Israel-as-Jewish-Democracy Speech National Origin/Ethnicity Discrimination or Harassment?
Harvard concludes that it is, but I’m skeptical that this is right—just as I’d be skeptical that an employer’s restricting pro-Hamas speech constitutes such discrimination or harassment.
As I've written in a separate post, three Israeli students in Harvard Kennedy School Prof. Marshall Ganz's "Organizing: People, Power, Change" course complained that Ganz had rejected their class project proposal's description of Israel as a "Jewish democracy":
- When the Parties met on February 27, 2023, Professor Ganz told the Students they could not describe Israel as a "liberal-Jewish democracy" because Israel is not democratic.
- In a March 2, 2023 email, Professor Ganz wrote that the Students' statement of purpose was "not acceptable going forward," and he instructed them to revise it. In a later email that night, Professor Ganz wrote, "I cannot permit [a debate of the question of 'Jewish democracy'] to claim the very limited time and space in a class in which 116 students are enrolled to learn to practice organizing. Please find a way to describe your organizing project in terms that are respectful of others in the class." {There is no evidence that the Students intended to debate whether Israel is a democracy in the Jewish homeland. According to Professor Ganz, certain teaching fellows sought to debate this issue, which Professor Ganz rightfully stopped.}
- When the Students told Professor Ganz that they would not change their purpose, he told them they would be responsible for the "consequences" of their decision, and later clarified that by consequences, he meant "fulfillment of course requirements."
A report commissioned and accepted by the Kennedy School concluded that this violated the students' free speech rights; I discuss that in a separate post. But the report also concluded this violated Kennedy School rules forbidding "discrimination and harassment" based on national origin, ethnicity, and ancestry, which the report treated as embodying federal rules developed under Title VI of the Civil Rights Act of 1964:
[Title VI] extends to those who experience discrimination, including harassment, based on their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity. Likewise, the Act protects individuals from discrimination based on the country, world region, or place where a person or their ancestors come from, including membership in a religion that may be perceived to exhibit such characteristics, such as Jewish individuals…. [To violate Title VI,] "the conduct must … be considered sufficiently serious to deny or limit a student's ability to participate in or benefit from the educational program." Conduct can be harassing even if the offender does not intend harm, and even if the conduct is not directed at a specific target.
The report concluded that Ganz's actions "treated the Students differently on the basis of their Israeli national origin and Jewish ethnicity and ancestry," by "instruct[ing] the Students not to use as a purpose anything that describes Israel as a 'Jewish democracy,' which he did only after complaints by Muslim and Arab students." Ganz had replied that he was focused solely on the topic, regardless of the ethnicity of the students, and would have likewise rejected a proposal from non-Jews who wanted to describe Israel as a "Jewish democracy." But the report disagreed:
OCR's guidance provides that "[c]onduct can be harassing even if the offender does not intend harm, and even if the conduct is not directed at a specific target."
{On May 25, 2023, the White House released its U.S. National Strategy to Counter Antisemitism, which similarly raised concerns about college students who are treated differently on campuses based on their actual or perceived views on Israel.
On college campuses, Jewish students, educators, and administrators have been derided, ostracized, and sometimes discriminated against because of their actual or perceived views on Israel. All students, educators, and administrators should feel safe and free from violence, harassment and intimidation on their campuses. Far too many do not have this sense of security because of their actual or perceived views on Israel.
Professor Ganz's treatment of the Students was inconsistent with guidance provided by OCR and the White House, namely that students should not be treated differently or harshly based on their views on Israel.}
Professor Ganz also favored the ethnic and political views of his Muslim and Arab students and teaching fellows over those of the Jewish Israeli Students.
Professor Ganz directed the Students to change their project after students and teaching fellows who identified as Muslim and Arab complained about the Students' topic.
Student 3 wrote to Professor Ganz: "As you know, Israel identifies as a Jewish and democratic state and, for many Israelis like us, the idea of Jewish democracy is not just an idea. It is deeply woven within our identities as Israelis and as Jews. It is part of who we are as people." In response, Professor Ganz admonished the Students for ignoring the "provocative nature" of their claims that Israel is a Jewish democracy. He also wrote that the matter was "not about [their] identity but about the identity of others who do not share [their] unique ethno-religious identity," and he threatened that the Students would be responsible for the "consequences" of their decision to pursue their topic.
Professor Ganz did not intervene when he learned that his teaching fellows planned to conduct a role play demonstrating weak and powerful ways to organize people to attend a Palestinian solidarity vigil. Nor should Professor Ganz have done so: such action would be inconsistent with his obligation to uphold the principles of free speech enunciated in the Statements. Yet, Professor Ganz's decisions to permit the teaching fellows to perform an exercise about Palestinian solidarity, however belatedly he learned of the topic, while seeking to silence the voices of the Students who sought to organize ways to improve Israel as a liberal Jewish democracy, suggests that he favored one ethnic and religious group over the other.
There is no evidence that Professor Ganz knew that a student intended to share keffiyehs with classmates as part of her effort to organize on behalf of Palestinian solidarity. Nor should he have intervened following the student's organization, for the reasons described above. The bias arose not because Professor Ganz permitted this speech, but because he tried to silence the speech of the Students who sought to speak on behalf of their view of Israel as a Jewish democracy.
Professor Ganz's preferential treatment of the Arab and Muslim students, who he viewed as a group oppressed by Israel, and his attempts to silence the Israeli Students, is inconsistent with the Statements' expectations that students enjoy a learning environment free from bias.
Professor Ganz also denigrated the Students' identities as Israelis and Jews. He compared the Students' purpose to Christian white supremacy in an effort to demonstrate that their claim to "Jewish democracy" was "contradictory." He also said that for some, Jewish democracy sounds like what white racist would sound like to others.
In our interview, Professor Ganz also separately stated that the Students' description of Israel as a Jewish democracy, from the perspective of many of those in the region, was similar to "talking about a white supremacist state." In his response, Professor Ganz wrote that he would not permit any student to organize around the topic of Judeo-Christian democracy, for the same reasons that he would not permit the Students to organize around "Jewish democracy." While Professor Ganz's clarification is a more generous articulation of his concerns, I credit the Students' account about how Professor Ganz likened their purpose to white supremacy, which he also did when I interviewed him.
The cumulative effect of these acts indeed created a hostile learning environment for the Students based on their Israeli nationality and Jewish ethnicity and ancestry, and effectively denied them the opportunities of a safe learning environment in the Course. Student 1 described the "shock[]" of being subjected to antisemitism. He came to HKS to further his goal of bettering Israeli democracy in the Jewish homeland, and was left feeling, "If we can't think about democracy here, then where would we?" Student 1 expected to take the second module of the Course but withdrew because he felt unwelcome in Professor Ganz's learning environment.
Student 2 felt silenced by Professor Ganz. He explained feeling uncomfortable and "really not legitimate" when attending the second weekend of the Course. He described his learning experience as "extremely hindered." Student 2 acknowledged that he and his colleagues were distracted from wholly focusing on their project because "every spare moment [they] had" was consumed with thinking about Professor Ganz's treatment of them; Student 2 and his colleagues spent an inordinate amount of time lamenting over their shared distress about the situation in which they found themselves. Student 2 reflected, "I was writing things that I felt in those moments, how does it feel to be a person that is being canceled and the professor is going against you. It was definitely interfering with the learning experience and ability." Student 2 elected not to take module 2 for the reasons described herein. Dropping the class late in the semester limited the option of courses Student 2 could choose from to replace the second module.
During the Course and thereafter, Student 3 suffered health problems that his physician said were exacerbated by the stress he was under. He is disappointed that the emotional distress Professor Ganz caused resulted in him dropping the second module, which he had been eager to take. Professor Ganz, in Student 3's opinion, created an "unsafe environment" in the Course and "kind of ruined" his experience at HKS. Student 3 also remarked that he did not get the "full experience" of the Course….
Here are my tentative thoughts:
[1.] If the Kennedy School is right that Ganz's actions were indeed "discriminatory" or "harassing," that means that the school would be required by federal Title VI rules to restrict such actions. Likewise, employers would have such an obligation under Title VII. This, I think, is relevant to the analysis below.
[2.] The report never found that Ganz targeted the students because they were Jewish or Israeli, and indeed it seems unlikely to me. Ganz's statement that
he was focused solely on the topic, regardless of the ethnicity of the students, and would have likewise rejected a proposal from non-Jews who wanted to describe Israel as a "Jewish democracy"
strikes me as quite credible: It appears that he, and the Muslim or Middle Eastern students whom he was trying to placate, were indeed concerned about the pro-Israel message rather than the identities of the messengers.
[3.] Now let's consider a different hypo: An employer refuses to allow his employees to wear pro-Hamas messages, because he thinks that this will anger coworkers or customers (or just because the employer disapproves of Hamas). Assume this is a private employer, so this doesn't violate the First Amendment, and assume that there is no relevant state statute banning discrimination based on political activity. Is this national origin or ethnicity discrimination that's forbidden by Title VII, on the theory that it targets criticism of the government of the Palestinians in the Gaza strip?
I take it we'd say "no." The employer is forbidding such speech by everyone, regardless of their religion, national origin, or ethnicity. Lots of supporters of Hamas are Muslim or Palestinian. There's no reason to think the employer cares about the identity of the speaker (absent some specific evidence that the opposition to the message or the concern about disruption is a pretext for going after Muslims or Palestinians); he just doesn't want what he sees as an evil or incendiary message. Thus, for instance, a 2022 First Circuit case rejected the claim that Whole Foods' prohibition on "Black Lives Matter" masks (which came in the form of enforcing a hitherto unenforced general dress code when people started wearing such masks) was race discrimination: A prohibition on "advocacy for protected individuals" (e.g., members of particular racial groups, national origin groups, etc.) is not actionable discrimination.
The same would be true in lots of other contexts. A business in a part of town inhabited by many Taiwanese can't refuse to hire people from Communist China. But if it refuses to let its employees wear pro-Communist-China messages, that's not national origin discrimination.
Naturally, I don't think that the Israeli political system ("Jewish democracy") is morally equivalent to Hamas in Gaza or the Communist Chinese political system. But I think they are legally equivalent for purposes of antidiscrimination law: Discriminating based on support for each is not discriminating based on national origin or ethnicity. If banning pro-Hamas messages isn't national origin discrimination, banning pro-Jewish-democracy messages isn't, either.
The report takes the view that "students should not be treated differently or harshly based on their views on Israel." I actually agree that this is good policy; but it should be viewed as a policy forbidding discrimination based on ideological viewpoint, something that Title VI doesn't preclude. It shouldn't be viewed as a facet of a ban on national origin discrimination. Just as treating students "differently or harshly based on their views on Hamas" isn't discrimination based on Palestinian national origin—even if it may be a violation of academic freedom principles or free speech principles—so treating them "differently or harshly based on their views on Israel" as a "Jewish democracy."
Likewise, consider this passage from the report:
Professor Ganz's decisions to permit the teaching fellows to perform an exercise about Palestinian solidarity, however belatedly he learned of the topic, while seeking to silence the voices of the Students who sought to organize ways to improve Israel as a liberal Jewish democracy, suggests that he favored one ethnic and religious group over the other.
Let's say a professor teaching the Russo-Ukrainian conflict allowed students to perform an exercise supporting Ukrainian resistance, and didn't allow other students to present a project defending Russian nationalism and imperialism. Again, perhaps that would be improper ideological discrimination. But it suggests that he favors one ideological view over another, and not that he's violating national origin discrimination bans by favoring "one ethnic group … over the other." Again, I generally support both Israel and Ukraine in these conflicts, and I'm not saying that Israel is morally equivalent to Russia or that the Palestinians are morally equivalent to the Ukrainians; but, again, it is legally equivalent for purposes of determining what constitutes "discrimination" based on national origin or ethnicity.
[4.] Nor do I think this logic can be avoided, as the report tries to do, by essentially saying that rejecting pro-Israel messages is "harassing," because it creates a "hostile environment" for Jewish and Israeli students—presumably because Jewish and Israeli students are more likely to be pro-Israel, and to take sharp criticisms of Israel personally. It may well be that Palestinian-American (or even more broadly Arab-American or Muslim-American) employees will be disproportionately upset by forbidding them from wearing pro-Hamas messages. But that can't mean, I think, that it's unlawful discrimination or harassment for employers to forbid the display of such messages.
[5.] This is particularly so as to the report's treatment of some of the professors' speech, and not just his prohibition on the student's selection of "Jewish democracy" as a topic, as "harassment":
Professor Ganz also denigrated the Students' identities as Israelis and Jews. He compared the Students' purpose to Christian white supremacy in an effort to demonstrate that their claim to "Jewish democracy" was "contradictory." He also said that for some, Jewish democracy sounds like what white racist would sound like to others.
Again, say that Ganz sharply criticized attempts to defend the Russian government as democratic or the Chinese Communist government as democratic, and indeed questioned the legitimacy of Russian and Chinese nationhood and not just their territorial ambitions. (For instance, he might take the view that China and Russia are actually the Chinese and Russian Empires, which are wrongly governing many ethnic groups, such as the Uighurs, Tibetans, and Chechens, and that those countries should not exist, at least with their current borders.)
Many ethnic Russians and ethnic Chinese might be quite offended by that. (Some might well agree, but then again Jews and Israelis are likewise not unanimous on the view that Israel should be a "Jewish democracy.") But again it's a mistake—and a dangerous one, I think—to treat criticism of a country with which students might feel affinity as "discrimination" or "harassment."
[6.] So, as I said in the other post, I tentatively agree with Harvard's insisting on students' being able to express their views, including pro-Israel-as-a-Jewish-democracy views, in their class projects. But I think that's a viable free speech argument (though under broad free speech principles rather than specific free speech rules)—and it would be equally viable, I think, if it had nothing to do with various identity groups, but instead involved students who wanted to present a class project related to gun rights or school choice or free speech. It shouldn't be made as an argument about discrimination based on national origin or ethnicity.
