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.

Comments

[patiens]

IF you go to school and do non-school things, you should be expelled after one or two warnings. There are no free speech rights at a school , where speech is teaching and learning. You can't interrupt a demonstration to teach physics and ,yes, you can't interrupt teaching Physics to demonstrate

Not a speck to do with free speech. It is a violation of the contract that me(paying parent ) has with the school.

[Supremacy Claus]

Misgendering a sexually disordered person got the person cancelled 300 times in our treason indoctrination camps. The barely disguised call for the eradication of a people is protected speech. That leaves self-help. Victims of democide have a duty to act.

[Roger S]

The word "antisemitism" has taken on a broad meaning, and you might be better off making your points without the word. You can get someone saying, "if being against genocide gets me called antisemitic, then so be it." (I am not saying anything is genocide, but that word gets thrown around loosely also.)

[AmosArch]

There are two David Bernsteins who wrote this article?

[y81]

Bernstein is afflicted with what Prof. Volokh has called "censorship envy." It is common for people to claim that if offensive words about some group are suppressed or punished by the university, then offensive words about their group must also be punished. It would be better if Bernstein stood resolutely for free expression, as some of the Conspirators have, but he is much too parochial and ethnocentric for that.

[David Bernstein]

That might be a good point if the article said the opposite of what it actually said, to wit:

Despite the extreme sentiments expressed, we share the view of those who contend that even grossly offensive speech that may contribute to a hostile environment falls within the freedom of expression rights of the students that should be respected on college campuses.86 Moreover, to the extent that a university is a state institution, or a university is acting in response to mandates imposed by hostile environment law, cracking down on such speech would be unconstitutional.87

Former Department of Education Office of Civil Rights General Counsel Kenneth Marcus agrees that the government may not punish speech protected by the First Amendment.88 He argues, however, that universities nevertheless have a legal obligation to take non-censorious measures to counter a hostile environment created by protected speech, such as by engaging in counter-speech. Marcus may be correct about universities’ legal obligations, but, law aside, we believe it would be more in keeping with the liberalism we support for universities to maintain institutional neutrality with regard to public controversies.

[ReaderY]

I think the difficulty here is that there have been a string of cases in which courts have dismissed cases that the district judges involved said turned out to be full of objections to political speech rather than actionable harassment or violence claims. Perhaps Jewish groups just have very bad lawyers. Perhaps these groups need to use legal documents and fundraising pamphlets and to survive need to satisfy their donors more than judges. But the repeated dismissals of these suits tend to undermine the claims Professor Bernstein is making.

I am inclined to be sympathetic to these sorts of claims. But the record is what it is. Cooper Union represented the unusual case where some claims survived dismissal. Many of these cases were dismissed in their entirety.

[David Bernstein]

UCLA case survived motion to dismiss. Columbia, UVA, Harvard and probably others that I'm forgetting settled lawsuits, Harvard (and maybe the others, I don't recall) after losing a motion to dismiss.