Supporting Free Speech and Countering Antisemitism on American College Campuses

The final version of this article is available for download here.

Coauthor David L. Bernstein and I spend a fair amount of space recounting examples of antisemitic campus activity that did not involve protected speech, such as vandalism, classroom and library disruptions, threats, one-on-one verbal harassment, assault, and more. Some readers of the draft paper questioned why a paper on free speech and antisemitism talking about things that don't constitute free speech.

A major reason for doing so is that David L. and I saw that many commentators were portraying the complaints about antisemitism on campus and the antidiscrimination obligations of universities under Title VI as if these complaints solely or primarily revolved around controversial political speech such as "From the River to the Sea, Palestine will be free."

A case in point is the just-published Antisemitism, Anti-Zionism, and Title VI: A Guide for the Perplexed, by lawprofs Benjamin Eidelson and Deborah Hellman. The authors barely address the obviously illicit nature of many of the activities alleged to be antisemitic, and incidents of assault, threats, and more are not addressed in their article.

Relatedly, the authors give extremely short shrift to the concern that the way universities have handles these activities reflects illegal disparate treatment of Jewish students. David L. and I write that the authors claim:

a university may defend a claim based on double-standards by arguing that most "claims by Jewish students are enmeshed with hotly disputed views about world affairs means that efforts to accommodate them may pose risks of chilling political speech or intruding on academic freedom that are less acute in many other cases."
The "natural comparator," therefore, would not be how the university treats discrimination claims in general, but how it treats "claims of discrimination and exclusion raised by Palestinian, Arab, and Muslim students."

In fact, claims of discrimination are often "enmeshed with hotly disputed views" on hot-button political issues (e.g., affirmative action, abortion, same-sex marriage), and if a university is applying a double standard to Palestinian, Arab, and Muslim students, the correct solution is to stop doing so, not to also discriminate against Jewish students.

Moreover, responding to disruptions, assaults, threats, and so on, does not impinge on protected speech to begin with, so recognizing that many claims of antisemitism are not about viewpoints but about illicit actions would make the threat of "chilling political debate" far more remote.