I and others have warned
that enactment of the Anti-Semitism
Awareness Act now before Congress would threaten free speech and free inquiry
on America’s college campuses and beyond. As I’ve explained, this bill incorporates
a conception – a “definition” plus potential examples
– of anti-Semitism that conflates criticism of Israel’s founding and continuing
abuse of the Palestinians with anti-Semitism for the purpose inoculating Israel
from such criticism. Anti-Zionist Jews and others have objected to this conflation
for over 70 years.
What makes us so confident in predicting a
threat to free speech?
We are confident in part because Donald Trump’s
assistant secretary of education for civil rights, who would enforce the legislation,
is Kenneth L. Marcus, whose record makes him the poster boy for the invidious
If this definition [of anti-Semitism] were adopted and implemented as Marcus
would like, the DOE would be empowered to conclude that universities nurture
hostile, anti-Semitic environments by allowing the screening of a documentary
critical of Israel’s 50-year military occupation of Palestinian lands such as
Occupation 101, a talk critical of Israeli policy by a Holocaust survivor, a
mock checkpoint enacted by students to show their peers what Palestinian life
under a military occupation is like, a talk on BDS [boycott-divestment-sanctions]
campaigns for Palestinian rights, or student resolutions to divest from companies
complicit in Israel’s human-rights abuses.
These aren’t hypotheticals. These speech activities were the subject of
real legal complaints, filed or promoted by Marcus and his Brandeis Center against
College (2013), University
of California Berkeley (2012), and University
of California Santa Cruz (2009). The complaints were filed to the same DOE
office which Marcus has been nominated to head [and to which he has since been
Crucially, all of these complaints were dismissed. Both a federal court
and the DOE made clear that the activities at issue were not harassment against
a protected group but constituted speech on matters of public concern, and therefore
were protected by the First Amendment.
Marcus founded and ran the Louis D. Brandeis
Center for Human Rights Under Law (not affiliated with Brandeis University),
on its website, “In the Twenty-first
Century, the leading civil and human rights challenge facing North American
Jewry is the resurgent problem of anti-Semitism and anti-Israelism
on university campuses. This social problem requires an immediate, effective,
and coordinated legal response” (emphasis added).
Note the conflation. How could anti-Israelism
on campus or anywhere else pose a “civil and human rights challenge to North
American Jewry”? If Judaism values universal justice, which the great prophets
admonished the ancient Hebrews to honor, attention to the systematic injustice
that Israel inflicts on the Palestinians qua non-Jews should be welcomed rather
than feared by all, including Jews. As I’ve argued, there is no reason to view
even foundational criticism of Israel through a presumption of anti-Semitism.
Indeed, the Center itself claims that “the civil and human rights of the Jewish
people are inextricably bound to the pursuit of justice for all peoples.” Unfortunately,
that sentiment turns out to be mere lip service; it is not reflected in its
actions – unless Palestinians are to be regarded as non-people. Alas,
that seems to be the case.
The Center is not alone in this belief or activity.
Similar programs are carried out by the Canary
Mission (an anonymous
website), which “documents people
and groups that promote hatred of the USA, Israel and Jews on North American
college campuses,” and the David
Horowitz Freedom Center, the self-identified
“school of political warfare,” which through its Israel Security Center headed
Glick stigmatizes criticism of Israel
as the “mainstreaming of anti-Semitism” and smears professors
who are Palestinian or who express sympathy for the Palestinians’ plight.
An assortment of other individuals, such as former student activist Bari
Weiss, now a New
York Times writer and editor feted
for her courageous advocacy of free speech on campus, have also made it their
mission to smear Palestinian sympathizers as Jew-haters.
Marcus previously worked in the George W. Bush
administration’s Education Department, Office of Civil Rights (OCR), and the
U.S. Civil Rights Commission.
As assistant secretary of education, he would
have the power to move against colleges and universities that in his view failed
to discipline pro-Palestinian student activists and professors on grounds that
their statements and activities create a hostile climate for Jewish students
and thereby violate their rights under Title VI of the 1964 Civil Rights Act.
However, even the lead author of the notion
of anti-Semitism embodied in the Anti-Semitism Awareness Act has bridled at
its use to police debate on campus. Kenneth Stern has written articles and given
testimony in Congress warning against such use. As Stern wrote
to the House Judiciary Committee in 2016, when a similar bill was under consideration
and was eventually killed because of First Amendment concerns:
I write as the lead author of the … “Working Definition on Antisemitism,”
to encourage you not to move “The Anti-Semitism Awareness Act of 2016,” which
essentially incorporates that definition into law for a purpose that is both
unconstitutional and unwise. If the definition is so enshrined, it will actually
harm Jewish students and have a toxic effect on the academy….
Antisemitism – like all forms of bigotry – has an impact on some campuses.
The worst way to address it is to create a de facto hate speech code, which
is what this bill proposes to do.
In years past various Title VI cases were brought asserting that a hostile
environment was created in substantial part by anti-Israel speech. All of them
Students should not be harassed and intimidated and threatened. But a campus
must be a place where students are challenged by difficult – and yes, disturbing
and even hateful – ideas.
In testimony before the committee, Stern said
it is not true that “antisemitism on campus is an epidemic. Far from it. There
are thousands of campuses in the United States, and in very few is antisemitism
– or anti-Israel animus – an issue.”
At the Mondoweiss
website, civil-rights advocates Abed
A. Ayoub, Phillip Agnew, and Harper Jean Tobin
write that, while at the Brandeis Center, Marcus “abused the OCR complaint process
by pushing frivolous protests that only serve to harass and stifle the speech
of students he disagrees with.”
Losing cases did not deter him, however. As
in the Jerusalem Post in
2013, “These cases – even when rejected – expose administrators to bad publicity.”
a nice word for that kind of behavior. Why aren’t such activities called racism?
(Marcus suggests that his complaints were exclusively against assault, physical
intimidation, and the like, but the OCR dismissals say otherwise.)
Marcus continued, “Just last week, I heard
from a university chancellor who is eager to work with the Schusterman Center
for Israel studies at Brandeis University to avert the possibility of a civil
rights complaint.” In light of the threat from the Brandeis Center, I doubt
the chancellor was likely to err on the side of free speech and free inquiry.
What one perceives as a hostile environment is highly subjective, but some believe
that the mere perception of something as anti-Semitic is sufficient to make
it anti-Semitic. Intentions and truth are irrelevant.
“As Assistant Secretary,” Ayoub, Agnew, and
Tobin write, Marcus will “be able to wield the threat of bad publicity in an
attempt to force universities to restrict the rights of groups such as Students
for Justice in Palestine.”
That’s a good reason to favor defeat of the
Anti-Semitism Awareness Act: it would enable Marcus, in Khalidi’s
words, to “try to do from the inside
of the DOE what he has failed to do from the outside.”
Sheldon Richman is the executive editor of The
Libertarian Institute, senior fellow and chair of the trustees of the Center
for a Stateless Society, and a contributing editor at Antiwar.com.
He is the former senior editor at the Cato Institute and Institute for Humane
Studies, former editor of The Freeman, published by the Foundation
for Economic Education, and former vice president at the Future
of Freedom Foundation. His latest book is America’s
Counter-Revolution: The Constitution Revisited.
Read more by Sheldon Richman
- Defining Anti-Semitism, Threatening Free Speech – August 26th, 2018
- A Glimmer of Hope in Bleak Palestine – August 5th, 2018
- Depopulating Palestine, Dehumanizing the Palestinians – July 29th, 2018
- Trump and Putin How about Getting Rid of Your Nukes? – July 22nd, 2018
- Trump Turns to Gaza as Middle East Deal of the Century Collapses – July 15th, 2018