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Wednesday, November 01, 2023

Lowering Expectations or What are universities supposed to do?

Jewish advocates; pro-Israel and Jewish students, alums, donors, faculty and others; the Biden Administration; and others are demanding that university leaders "do something" about the recent wave of campus antisemitism/Judenhass, to "do something" to keep Jewish students safe. A serious question, though: What are universities and university leaders supposed to do?

Begin with several premises:

    1) Jewish students and others have faced a wave of antisemitic speech, speakers, and conduct, to a degree most American Jews have never experienced.

    2) Much  antisemitic speech (as with most hate speech) is constitutionally protected. Horrible and unnerving, but constitutionally protected. It takes a lot for speech to cross the line into harassment, incitement, fighting words, or true threats. Much of what we have seen on campuses the past 24 days does not cross (or even come near) that line. This is partly definitional--people disagree over what speech is or is not antisemitic. That demonstrates one problem with trying to ban "hate speech"--people will never agree on what it is, especially when applied to one's own speech or to those groups one cares about.

    3) Public universities are subject to the First Amendment. Many private universities and colleges (and most selective private institutions) voluntarily--and perhaps as a matter of contract--self-impose the limits reflected in the First Amendment. Almost all universities commit to academic freedom, which means allowing faculty (and perhaps students, depending on one's theory) the full range for in-class, scholarly, and extra-mural speech.

So now what?

Many parents, students, faculty, donors, high schools, and others want the university to shut this speech down and punish those who engage in it. They want SJP defunded or barred from campus. They want the university to expel the student who posted on social media that Jews (or at least those who attended a pro-Israwl rally) can burn in hell. That is not an option, given the premises above.

Chemerinsky asks that "we stop being silent and  . . . say the antisemitism must be condemned and it is not acceptable on our campuses[.]" It is "all the more important that they show moral leadership and speak out against the antisemitism that is rampant now, as they would condemn all other forms of racism and hate on campus." Accept Chemerinsky's point that schools must speak out and condemn. Is  speaking out and condemning sufficient? Would a university satisfy donors, parents, faculty, students, and interweb pundits everywhere by calling out antisemitism generally or specific acts and actors? And would calling out antisemitism stop it and thus keep Jewish students safe--would name-and-shame from the dean deter anyone committed to engaging in antisemitic speech? Does any committed advocate care that the dean or the university president labels their speech antisemitic or criticizes them? Maybe public statements will convince some people watching this to recognize the problem of antisemitism and to support their Jewish colleagues. But that does not stop the "unacceptable" antisemitic speech on the campus from those who choose to continue to engage in it.

Schools (and the government) must pursue speech that crosses the line--true threats, bomb threats, protests that descend into violence (such as the video of Harvard protesters surrounding and blocking a Jewish student trying to walk across campus). Schools must ramp-up security to ensure that bad speech does not turn into bad conduct. But they must do so in a way that does not chill protected speech (the majority of what we are dealing with) and not in a way that turns the university into a police state.

Schools should enforce content-neutral rules and laws--for example, rules against tearing down other people's fliers in public spaces or rules against projecting words and images onto campus buildings. But most such rules carry relatively minor sanctions, far less than what many are demanding. And schools cannot punish unauthorized antisemitic tearing or projecting more harshly than other unauthorized tearing or projecting.

Schools can stop and sanction discriminatory conduct--the teacher who makes Jewish students stand in a corner, the resident assistant who refuses to help Jewish students, the work-study supervisor who treats Jewish students less favorably. And they can stop speech and conduct taken on behalf of or as the university. But, again, that represents a small piece of this.

David Bernstein criticizes universities' (including George Mason, his home institution) silence the past three weeks compared with how universities pushed DEI training and issued public statements on non-campus major world events about which non-Jewish students cared. I agree that administrators have been inconsistent. But then what? Accepting (as David does) that universities should not opine on world events, is it good that universities came belatedly to the right path, even if for the wrong reason? Or should the university continue its erroneous path because it affects "my" group?

So if universities cannot impose consequences on most abhorrent speech and university statements will be little more than symbolic, what is left? The answer seems to be the dreaded cancellation--privately imposed social, economic, employment, and other consequences, that express the canceller's response to offensive speech. This could be hard (recording and shaming those who remove fliers of kidnapping victims) or hard (loss of jobs and other positions). I am not arguing that this is the right thing to do. I recognize the problems--the risk of tit-for-tat and the general fear it creates among those who wish to speak. But if the goal is to "stop" antisemitism--something that, let's face it, no one has been able to do for millenia--it represents the only way to impose meaningful consequence and thus deterrence. Alternatively, people must lower their expectations and accept that loud-but-symbolic support from the university and from fellow students (such as the non-Jewish students going to eat at Cornell's kosher dining hall), along with vigorous policing of unprotected activity, is the best we can do under the First Amendment.

Posted by Howard Wasserman on November 1, 2023 at 09:31 AM in First Amendment, Howard Wasserman | Permalink


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