Swapping Strategies

Different minority groups often swap strategies for protection in the context of trying to overcome societal oppression, and an advance for one group often can lead to advances for others. In a recent interview I did with Lewis & Clark's alumni magazine, for instance, I talked about how the pathway used to ensure Jews receive Title VI protections (notwithstanding the fact that Title VI doesn't cover religion, only race, ethnicity, and nationality) was quickly adopted to also secure similar protections for Muslims. Security tips meant to keep synagogues safe are often used to help secure mosques as well. And so on.

Another example of this that's less remarked upon, though which is (depending on your vantage) more interesting, more amusing, or more grim, is how the legal arguments pro-Israel advocates have used to try to extend anti-discrimination protections to cover backlash against Jews-as-Zionists have increasingly been adapted by pro-Palestine advocates to try and create discrimination claims around backlash directed at Palestinians-as-anti-Zionists.

I think we're all familiar with the contours of these arguments, and the controversy surrounding them, in the context of the "anti-Zionism as antisemitism" play. A Jewish student says something "Zionist" and is targeted by adverse action as a result. The student's supporters say "this is antisemitism -- Zionism is an integral part of my Jewish identity, and so attacking me on the basis of 'Zionism' is tantamount to attacking me as a Jew." Opponents reply that Zionism is a political ideology and criticisms of that ideology -- whether ultimately well- or ill-taken -- cannot be deemed to be targeting persons on the basis of an ascriptive identity. Not all Jews are Zionists, and in any event there is a difference between an identity and an ideology many members of a given identity happen to believe in.

Yet increasingly, we're seeing similar arguments being raised to bolster claims of anti-Palestinian discrimination. Consider the civil rights complaint Palestine Legal filed on behalf of Ahmad Daraldik, who was removed from his position as head of the Florida State University in part due to speech characterized as anti-Israel, anti-Zionist, or antisemitic. This complaint followed shortly after a high-profile complaint filed against USC on behalf of a Rose Ritch, a Jewish student ousted from student government for being a "Zionist". There are more than a few similarities between how the cases are framed that may not be coincidental. While Ritch's case is not mentioned in Daraldik's complaint, there does seem to be something to the notion that Palestine Legal (which undoubtedly was aware of the Ritch case), thought something along the lines of "if the Zionists can make claims like this, than so can we."

To be sure, some of Daraldik's allegations are quite "traditional" cases of discrimination (e.g., social media messages directed at him containing racial slurs). But others very much seek to present Daraldik's anti-Zionist speech as integral to his identity as a Palestinian, such that backlash against the speech ought to be viewed as tantamount to attacking him as a Palestinian. For example, he characterizes the hostility he endured as resulting from his "speaking about my life as a Palestinian growing up under Israel’s violent system of apartheid". And his lawyers likewise argued that statements by the university president characterizing some of Daraldik's own speech as antisemitic (a social media post which referred to an IDF soldier as a "stupid Jew" was probably the most prominent) was said to "reinforc[e] the anti-Palestinian stereotype that Palestinians reacting to experiences of violence and oppression by the Israeli government/military are inspired by anti-Jewish animus, not their own oppression" -- what many wearing other shoes might characterize (favorably or derisively) a "trope-based" argument.

These arguments, too, try to present a political orientation vis-a-vis Israel and Zionism as an integral part of an ascriptive identity. In that respect, they parallel Ritch's efforts to make the same argument at USC, and they're vulnerable to the same objections: anti-Zionism, like Zionism, is a political ideology, and so we might also say that criticisms of that ideology -- whether ultimately well- or ill-taken -- cannot be deemed to be targeting persons on the basis of their Palestinian identity. But -- without taking a position on the substance of his complaint -- I have more sympathy for Daraldik's conceptual argument here than one might suspect (precisely because I have some sympathy for Ritch's iteration too). While it's true that "not all Palestinians" likely agree with what Daraldik said or believes (what is Bassem Eid doing these days?), that does not mean there is no connection between what Daraldik said (and the backlash to it) and his Palestinian identity. I can absolutely see how not being able to level criticisms of the Israeli government or its policies would be experienced as an oppressive blanket that functionally obstructs the ability of Palestinian students to participate as equals in educational spaces. And the belief that there is "pure" animus against outgroups that does not drape itself in the garb of reasons seems unrealistic to me; the problem of disentangling "political" speech from bigotry is assuredly difficult, but it's also unavoidable. These responses don't tell us, of course, how the law should handle cases like Daraldik's or Ritch's -- at most, they show why they present genuinely nettlesome problems. But the point is they present the same problems, and the strategies for trying to make Daraldik's claims legally legible are similar to those used to do the same for Ritch's -- an overlap which simply does not seem coincidental.

A few days ago, we saw another example of this overlap in Tannous v. Cabrini University, involving a Palestinian professor terminated from his position due to social media posts that were alleged to be antisemitic but which he insisted were actually anti-Zionist (among the offending messages was one reading: "zio controlled USGOV politicians promise to cancel 2T$ of student loan debt ... yet they sent that 2T$ to Ukraine, Nato, and Israel to arm NAZIs.... Israel and Ukraine are societal cancers and must be eradicated."). 

The professor sued under a variety of theories, including claiming racial discrimination (he was at one point represented by Palestine Legal, though I don't know if they remained his attorneys throughout the litigation). In general, the district court concluded that a belief that a plaintiff is racist -- even if "wrong" -- does not equate to showing that adverse action occurred due to unlawful prejudice. In other words, it's not discriminatory to (even wrongly) accuse people of antisemitism. The exception might be if there was evidence that the only reason why a person holding X views was deemed to be racist was because they were also a member of a given identity group (another person of a different identity, but holding otherwise similar views, wouldn't be targeted). And indeed, the professor did argue that "[d]ue to his status as a Palestinian American, [the university] presumed that his tweets critical of Israel were actually criticism of Jews." The court rejected this argument as conclusory (there was no evidence presented that the university wouldn't have been equally offended no matter who wrote these tweets) -- but again, the core claim being raised here is one relying on the existence of a "trope" that seeks to convert backlash against "tweets critical of Israel" into an ascriptive attack on his Palestinian identity.

Indeed, there's a part of me that read the Tannous case and wondered if there might be a bit of 10-dimensional chess going on. The main basis for the court's decision in Tannous was that even unfairly accusing someone of "racism" or "antisemitism" is not tantamount to discrimination on basis of a protected class. Tough luck for Professor Tannous. But also, maybe, tough luck for Rose Ritch, whose detractors also could say that they acted against her not because she was Jewish, but based on their belief that her ideology was racist. That belief might be wrongheaded, but under the logic of Tannous it is not antisemitism. Tannous might have lost the battle, but Palestine Legal may have won the war -- and in any event, one can see the logic of them pursuing the case as a win-win: if arguments like the one they made on behalf of Tannous are rejected, then these arguments aren't going to be available for Zionist Jews making similar claims of discrimination where the underlying facts suggest the antisemitism is cloaked in antisemitic garb; and by contrast if those arguments are in fact legal winners, then there's no reason why they shouldn't leverage them for their own clientele.

To be clear: there's nothing unsavory about what's going on here. Legal arguments and precedents travel, and it's entirely normal and ordinary that various groups will decry the outrageous, abusive advocacy tactics of their opponents in one moment and furiously crib off them in the next. Jewish groups do it too (witness the blinding oscillation between "DEI is the devil" and "let's use contemporary DEI language to explain antisemitism"). But it's still interesting/amusing/grim (take your pick) to witness the unacknowledged but almost certainly significant influence contemporary Zionist legal advocacy is having on developing the strategies of their anti-Zionist adversaries (and, probably, vice versa).