The Columbia-Boycotting Judges Should Recuse from Columbia-Related Cases

A Seventh Circuit panel has dismissed a judicial ethics complaint levied against one of the judges who announced a boycott of Columbia University graduates in his clerkship hiring.

This was, I think, the correct decision, and I have no substantive quarrel with the panel's analysis. Moreover, the complainant, who "is serving a sentence in a state prison after a jury found him guilty of arson, terrorism, and other crimes stemming from his role in firebombing and vandalizing Jewish houses of worship" and who loaded up his complaints with spurious conspiracies of foreign influence and control, is hardly the ideal party to raise concerns about judicial behavior in this context.

That said, while I agree that there is no ethics violation to be found in the Columbia boycott, I do think that the signatories to the boycott letter are obligated to recuse themselves from any Columbia-related cases -- including cases where a party is represented by a Columbia attorney who matriculated in the targeted time period. An academic boycott of this sort necessarily signals bias against persons under the umbrella of the targeted institution, and both the university and its graduates can fairly wonder if they will be treated fairly in the courtroom of a judge who participates in this boycott.

To understand why, it's important to be clear about what a boycott is. One point that is often emphasized in this conversation is that judges have extremely wide latitude in deciding who their clerks will be and on what criteria they will be selected. For example, the panel here wrote:

Except to the extent prohibited by these regulations and guidelines, judges have wide discretion to establish their own screening and selection criteria in appointing law clerks. This latitude permits judges to make distinctions among applicants based on their own determinations of the relevant criteria or qualifications, including where the applicants were educated. Some judges only hire graduates of certain law schools. Some tailor their preferences to the specific needs of their court or chambers—for example, by looking for candidates from law schools with excellent writing or trial advocacy programs or strong core curricula in relevant subject areas. Relatedly, some judges only consider candidates with a GPA in the top 10 or 20 percent of their law-school class (or some other academic cutoff). Some require membership in the law review or moot court team. Others prioritize candidates from law schools in their state or circuit.

This is quite right. But then they continue to say that "[i]n the same way, a judge may refuse to hire law clerks from a law school or university that has, in the judge’s view, failed to foster important aspects of higher education like civility in discourse, respect for freedom of speech, and viewpoint nondiscrimination."

I don't think these are the same. And one hint that they're not the same is that you would never hear any of the examples cited in the first paragraph described as a "boycott". A judge who will only hire (or more likely, strongly prefers to hire) applicants for law schools in their state would not characterize herself as "boycotting" the other 49 states. A judge who only hires students in the top 20% of their class would not say he is "boycotting" the bottom 80%. A "boycott" by its nature is different from the ordinary and normal processes of selection that judges (and all of us) do on a daily basis. And -- more to the point -- one calls what one is doing a "boycott" precisely in order to draw that distinction and to signal that one is departing from the normal and unremarkable exercise of discretionary selection.

Consider another example: there are many restaurants in Portland. In deciding where I go to eat, there is a wide range of screening and selection criteria I might use, from taste to price to convenience. Even with those criteria, the vast majority of restaurants I never have and never will eat at -- but nobody would say I am "boycotting" them. In other cases I have eaten at them, but decided that (for example) the food was bad and so will not return. Again, under ordinary usage nobody would call that a "boycott". 

If I announced I was boycotting a given restaurant, the ordinary listener would understand that I am doing something different than identifying the place as among the many, many restaurants I don't eat at for "normal" reasons. A boycott, rather, is a decision to not patronize or transact with a given establishment, based on reasons that lie outside the normal evaluative criteria one typically uses to select a restaurant and in order to effectuate some change in behavior that also lies outside the normal bases one uses to select where to dine (one might say, with respect to the restaurants I no longer visit because the food is bad, that my non-patronage is an attempt to "pressure" them to improve their menus and I won't return until my demands are met, but this would again be highly idiosyncratic usage). The expressive meaning of a boycott -- what makes it a boycott as opposed to an unremarkable decision not to patronize -- is a declaration that "I will not transact with you even if you do meet the criteria I normally use."

This highlights another feature of boycotts: by their nature and by design, they stand in opposition to individualized consideration of a candidate on his or her merits. Return to the law school example. Contra the above paragraph, I actually think it is quite rare for a judge to have a flat rule -- as opposed to a strong preference -- to only hire clerks from a certain state or with a certain GPA or possessing a certain academic background (the repeated use of language like "preferences" and "prioritizes" is again a hint here). They would not reject on principle an oddball candidate who doesn't meet one of the normal screens but for whatever reason still stands out to the judge as extraordinary. Now, it may be that, given the surplus of qualified candidates, in practice no such "oddballs" ever emerge; there are always enough candidates who fill the normal criteria and are also deemed extraordinary. But again, the point of a boycott is precisely that it entails refusing, in advance and without exception, to even consider the applicant no matter what their merits might be. One refuses to dine at the boycotted restaurant no matter how tasty one of its dishes may be. One refuses to hire from the boycotted school no matter how superb one of its graduates may be.

And this is where the issue of bias does creep in. The putative justification for the blanket boycott of Columbia is that the university is so suffused in antisemitism and broader censorialism that all of its graduates are indelibly tainted -- so much so that the judges are outright refusing to engage in any individualized consideration or assessment of any members of the community. I've observed before and I'll observe again that not only are the nominal victims here -- Columbia's Jews and/or conservatives --covered by the boycott, they are in fact its most likely targets (those harassing Jews on campus were not likely to be applying to the judges in question in the first place). Assessed as individuals, it would be weird to impute the sins of Columbia writ large onto their heads. But the entire point of the boycott is that substitutes collectivist grievance for individualized consideration:

[T]he point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho [or other signatories to the boycott letter] declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

I recognize, of course, that at some level there is no such thing as truly "individualized" consideration and there is inevitable mushiness around terms like "normal evaluative criteria" (I recognize that; I wish the courts understood it better in the context of affirmative action). But my position is that the very invocation of the term "boycott" is a declaration and a concession to that point: one says one is boycotting because one wants to express that you're not just doing the ordinary work of meritocratic selection. 

To put it starkly: the core, distilled message the signatories of the Columbia boycott are sending vis-a-vis Columbia students is "because of your association with Columbia, we will not assess you as individuals or on your merits. Your association is enough to render you irrebuttably tainted in our eyes." 

Given that, could an attorney who matriculated at Columbia in the relevant time period feel confident that one of these judges would abide by their judicial duty -- will assess their arguments, behavior, and comportment based on their individual performance and "on their merits"? I don't think they can have that confidence, and I think those fears are reasonable.

None of this constitutes an ethics violation -- a judge does not commit an ethics violation simply by engaging in conduct which would, given the right parties or circumstances, compel a recusal. But I do think that any judge who announces an academic boycott of a given law school, in circumstances where that necessarily entails an announced refusal to judge that school's community members as individuals and on their individual merits, can reasonably have their impartiality questioned when later asked to assess the merits and demerits of that school or its graduates.

(There's one other element of the boycott that I haven't heard talked about much: the extent to whether it crosses over from permitted "jawboning" to impermissible government efforts to censor speech. The boycott imposes official sanctions on Columbia unless it makes various alterations to its school speech and disciplinary policies to the satisfaction of the boycotting judges. Obviously, Columbia has no First Amendment right to, for example, violate Title VI. But while it can, as a private university, suppress antisemitic speech, it is not obligated to; and the government cannot compel it to. Less obviously, but perhaps more importantly, as a private university Columbia is not required to abide by any commitment to viewpoint neutrality or "evenhanded" treatment of different types of protesters. While I doubt Columbia would concede the premise that it does engage in any sort of biased behavior -- and my recollection is that the letter was in fact purely speculative on this point -- the point is that Columbia's choices as to what views it does or does not favor are an exercise of its free speech and associational rights, and official efforts to punish the university for expressing itself incorrectly seem to raise significant First Amendment problems).

The Lawless Pit Holding Mahmoud Kahlil

Over the past few days, I like many have been expressing outrage over the arrest and detention of Mahmoud Kahlil, a lawful permanent resident of the United States, due to his involvement in pro-Palestinian protests at Columbia University. Federal agents raided his home and told him that his visa had been revoked; when informed he held a green card, they summarily informed that that had been revoked too.

I know nothing about Kahlil personally or his involvement in the protests (I've seen differing accounts of his role, but I haven't dug deeper because it honestly doesn't matter right now). And on a moral level, so much of what happened here sickens me. It sickens me that a permanent resident could be summarily snatched from his home and detained in clear retaliation for his expression. It sickens me that Jewish organizations putatively "fighting antisemitism" appeared to have played a direct role in his arrest. It sickens me that the ADL has fulsomely praised the operation, tacitly endorsing draconian anti-immigrant legislation that in a prior life it recognized as "the worst kind of legislation, discriminatory and abusive of American concepts and ideals" (I am heartened that other Jewish groups are speaking out against it). It sickens me to see Trump use the word "shalom" as a taunt. It sickens me to witness people trying to argue that this is ultimately Columbia's fault for not cracking down on the protests more aggressively, as if there is some straight line between potential underenforcment of the student codes of conduct and arbitrary arrest and deportation (news flash: university disciplinary issues -- even if you think they're mishandled -- should not be seen as deportable offenses!). 

And finally, it sickens me to see folks trying to finesse the issue by adopting a "well, let's see what the courts say before we rush to judgment" handwash. Partially, that's a problem because the entire seizure of Kahlil is a sterling example of the Queen of Hearts' justice: "sentence first, verdict later." If you've got Kahlil on a deportable offense, go through the legal process and prove it; don't start with the obviously speech-motivated arrest and then after the fact grope around for some figleaf of a legal justification. Everyone and their mother knows that whatever legal argument gets dredged up will be a pretext; the Trump administration is not remotely hiding the fact that it is targeting Kahlil for his speech.

But the bigger problem with waiting for the process of law to take its course is that I don't think people fully realize what a legal blackhole immigration law truly is.

I am not an immigration lawyer. But I do have some experience with immigration law, mostly during my judicial clerkship. My assessment of immigration law following that year can be summarized in two parts: (1) it was some of the most meaningful and impactful work I did, and (2) I never, ever wanted to be involved in it again. The explanation behind both halves of that equation is one and the same: immigration felt like a lawless pit. Our immigration law and doctrine is supersaturated with opportunities for governmental abuse that is largely immunized from any sort of meaningful review. To anyone with a passing familiarity with this system, it is outlandish to assert that our immigration system is too generous to migrants. Our immigration system is cruel, and arbitrary, and unfair, and in many respects essentially lawless. I was involved with it for a very limited amount of time, and to a very limited extent, and it still traumatized me in ways I continue to feel to this day.

So when I read Steve Vladeck's assessment of actual legal questions surrounding Mahmoud Kahlil's detention, I was not surprised, but I was alarmed. Vladeck does not argue that Kahlil's detention is lawful. But he does think it is not as clearly unlawful as is being asserted. The reason why, to be clear, is not that the Trump administration has some secret reasonable argument that's been occluded by the media firestorm. It's that our immigration law is so stacked with vague and abusive rules and dangerously deferential precedents that even misconduct as egregious as this might not be clearly forbidden. The lawless pit holding Mahmoud Kahlil is not something new. The Trump administration might be more brazen in exploiting these opportunities for abuse, but doctrinally speaking it had many tools lying around waiting to be picked up.

Indeed, one interesting thing about Kahlil's case is that it demonstrates a fascinating and underappreciated bivalence in the political salience of pro-Palestinian advocacy. On the one hand, it is very clear that Kahlil was targeted and made vulnerable by virtue of his pro-Palestinian speech. However, it is also clearly true that Kahlil's situation has mobilized and galvanized popular attention also by virtue of the fact that his case involves pro-Palestinian speech. Kahlil's case more clearly demonstrates both the distinct vulnerability but also the distinct power held by pro-Palestinian advocates I can remember in quite some time.

Again, the core problem of abuse in our immigration system -- the ability to arbitrarily and (functionally) lawlessly detain and deport immigrants for any reason or none at all -- is nothing new. I'm sure immigration activists could hand you hundreds or thousands of comparable stories of lawful residents snatched and detained for the most absurd or malicious of reasons. And while I have little doubt that most persons protesting on Kahlil's behalf would, if you gave them those stories, express genuine outrage over them as well, there's little doubt that the reason this abuse and this outrage captured public attention in the way that it did was because it involves an attempt to suppress pro-Palestinian speech, specifically.

This, to be clear, is not a bad thing. It is a good thing -- anything that encourages people to recognize the wild, lawless abuses latent in our immigration system generally and in the Trump administration's enforcement specifically is a good thing. But it is worth noting the more complex relationship with power that is being demonstrated here. Mahmoud Kahlil's story is about how the Trump administration feels empowered to destroy the lives of pro-Palestinian advocates by any means necessary; it also (sickeningly) is a story about how some Jewish organizations are cheering on the project. But it is also a story about how a connection to Israel/Palestine makes people care about things more often and more intensely than they often otherwise would. That is expression of power, and one that has implications that go well beyond this case.

We Won't Be Fig Leaves For Your Fascism

Last night, I posted about the Trump administration's declaration of war on American academia, there taking the form of a threatened academic boycott of Georgetown University for having "DEI" in its curriculum. Today, the Trump administration continued its attack in even more aggressive fashion, axing $400 million of government grants to Columbia University, putatively as a sanction for campus antisemitism.

Let's get one thing clear off the jump: this is not about "fighting antisemitism". It is about destroying American higher education. We do not need to pretend, even for a moment, that fighting antisemitism -- which is very real, at Columbia and elsewhere -- has even the slightest relevance to the Trump administration's decision. As Jews, our only response should be to declare, loudly and without hesitation, for Trump to get lost. We will not be fig leaves for your fascism.

Because in reality, the only role Columbia's Jews are playing in this drama is that of the scapegoat -- Donald Trump is using us to soak up the blame for his authoritarian thuggery. As I noted the last time I posted on MAGA government officials targeting Columbia for "BDS"-style tactics, if it seems like these choices are hurting the Columbia Jewish students they putatively are supposed to "help", that's entirely by design. These people loathe Jews, generally, and Columbia's Jews, specifically -- the claimed love for "Jews" is entirely superseded by seething hatred for actual Jews. And so while the main goal is to hurt the university as a whole, hurting Columbia's Jewish students is I'm sure seen as a delightful bonus.

That the Trump administration is colonizing "fighting antisemitism" in service of his authoritarian agenda is despicable, and it makes Jews less safe (which, again, is entirely intentional). The other day, I was thinking about my baby boy growing up and starting school here in Portland, and, as all parents are wont to do on occasion, I began catastrophizing a little bit. I imagined him the victim of some antisemitic incident, and what I would do about it. 

And what paralyzed me was the thought that if I did need external support in some way (to go to the press, to blog publicly about it, to get the local Jewish Federation involved, etc.), I knew things would rapidly spiral out of my control, and my son would become a mascot for politics we never signed up for and fervently reject. We'd see people exploit our tragedy to attack DEI or indulge in anti-Palestinian racism, and nothing we could say or do would stop them, and nothing we could say or do would stop others from projecting those agendas onto us.*

It's a paralyzing thought because this fear -- and I think it's a very realistic fear -- would genuinely and seriously deter me from seeking aid I desperately need. It would push me to stay silent and quiet and suffer because seeking support would only make things worse. That's an incredibly lonely position to be in, and it's one that I think aptly characterizes how many campus Jews feel right now. We're lonely -- lonely because of the antisemitism we endure, and lonely because we know any steps we do take to publicize the issue will rapidly and brutally rebound against us, often by the very actors who most loudly boast they're "standing with us".

It is this loneliness that the Trump administration is intensifying. By wrenching "fighting antisemitism" away from what Jews actually want, and seizing it for his personal authoritarian revenge project, he isolates Jews yet further. We're isolated from other members of our community, we're isolated from actual resources of care and support, we're isolated from one another. It's despicable, and it's disgusting, and it is frankly terrifying. But the only way to fight it is to fight it. Don't indulge it, don't tip toe around it, don't even for a second pretend to think it has anything to do with actually fighting actual antisemitism.

We will not be fig leaves for your fascism.

* In many ways this is just the JV version of "dying politically", and if you think people would respect the victims they're nominally "protecting", you should see how people are responding to Hayim Katsman's mother right now.

They're The Same Picture

The JTA has an interesting profile on a "new" right-wing Zionist organization, Betar ("new" in quotes because it claims to be a resurrection of a much older Zionist outfit active before Israel's founding). Betar has distinguished itself by its "confrontational" approach -- meaning that it engages in acts of vandalism and violence, and openly calls for things like ethnic cleansing of Palestinians and the expansion of Israel's borders well beyond the West Bank and Gaza and into modern Jordan, Egypt, and Syria.

Critical readers will spot a lot of commonalties between Betar and the more hardline elements of the pro-Palestinian movement. Most obviously, Betar uses almost identical rhetorical maximalism -- compare "We don't want two states, we want all of it" heard at pro-Palestinian protests with Betar's recent statement "We don’t want peace. We don’t want co-existence" -- and simply asks listeners to "choose a side". Pick your preferred ethnic cleanser and cleansee.

But there are some other commonalities. Perhaps the most important one to flag is that Betar hates "moderate" Jews as much if not more than it hates Palestinians, and its definition of "moderate" includes many Jews whom external observers would view as hardliners. Consider Betar's confrontational relationship with Columbia professor Shai Davidai, who has organized aggressive (to say the least) counterprotests aimed at pro-Palestinian activism on campus and had to deal with a Betar element crashing his event:

Despite their tiny size, the Betar contingent immediately worried Davidai. Most of them were young men, he recalled; several covered their faces; one had a flag of the Jewish Defense League, an extremist group that the United States has designated as a terrorist organization. “All they did was scream ‘F— Gaza,’ ‘Gaza is ours,’ ‘Here’s a beeper for you,’ ‘Deport them all,’ ‘ICE, ICE, ICE,’” he said. “Just violent rhetoric.”

Davidai is no stranger to provocation: Last fall, Columbia barred him from campus after months of his vocal criticisms of the university’s handling of antisemitism. Yet he views Betar as a serious obstacle to the movement he was trying to build, not least because they were adapting the same tactics as the pro-Palestinian side: expressing support for a terror group and hiding their faces as they did so.

“I think it’s hypocritical to spend 16 months blaming all protesters who are in this Free Palestine movement for not policing their own protesters, but then let hatred and violence take root in yours,” Davidai said. “I said, ‘Look, you’re doing exactly what we’re telling them not to do….’  At some point I asked them, ‘Go do your thing, but don’t be associated with us.’ They refused.”

After the rally, Betar and its followers began targeting him online. On Instagram he blasted them for only joining counter-protests, while never showing up to rallies for Israeli hostages. The rhetoric has only escalated from there, as Betar has mobilized its followers against him, in public and private. “You will be disrupted at all future speeches,” Torossian messaged Davidai on WhatsApp, according to communications shared with JTA. “You are a radical.”

Davidai has also urged his followers against supporting any further killings or mass expulsions in Gaza, a stark contrast to Betar’s own stated views. Yet in the comments, many of Davidai’s own followers have begun taking Betar’s side, accusing him of naively trying to make peace with the enemy.

There are some lessons to be learned here. One lesson is that there will always be someone more aggressive, confrontational, and hardline than you, and those actors will prove almost impossible to police. Moreover, they (in many ways correctly) view more "moderate" elements of their own community as their most important and salient competition and will ruthlessly try to attack and suppress those they deem "traitors" or "appeasers" in order to accumulate more power to themselves as the "authentic" voice of "true resistance" (this certainly characterizes how the BDS movement has been going after Standing Together, for instance). And finally, leaders of social groups that simultaneously play footsie with the sort of extreme rhetoric while assuaging themselves that of course their actual politics are humanitarian and egalitarian, they're just revving up a crowd or exaggerating for effect, will quickly learn that much of their base isn't in on the bit. They're in it for the hate, and when someone offers that hate better, they won't listen to your attempts to rein things back in.

There's also a very important lesson not to learn here. For some people, it is important to hear about groups like Betar so to disabuse any notions that calls for ethnic cleansing and political violence are only something "they" (the other side) does, whereas "our" movement is purely one of peace and coexistence. That illusion is dangerous and must be dispelled. But for others, the main function of groups like Betar is to give people a permission structure for their own counter-maximalism, because "this is what they're really like". If they're out there saying "Gaza is ours", what choice do we have but to fling them into the sea? If they're out there saying "Israel must be rooted out and destroyed", what choice do we have but to "transfer" them out of Gaza? There are a lot of people who just love the Betars or the Within Our Lifetimes of the world, and are constantly searching for examples of the genre. It's not because they agree with them. It's because their existence gives license to be as extreme and uncompromising and hateful as you want, because have you seen what they want?

The only way out of that trap is to recognize that it's the same picture. These organizations may have different preferred winners and losers, but they're fundamentally on the same side -- trying to convince you that the only choice there is to make is choosing your preferred extremism. And that is a false choice. As important as it is to name and shame these sorts of extremists, if you're main motivation in doing so is to validate your preconceived notion that this sort of extremism is the actual true authentic core of an entire people or culture, then you are not shaming anyone -- you are joining them.

The true enemy, as always, is anyone who rejects the equal dignity and democratic equality of Israelis and Palestinians alike. Anyone who rejects that there are two authentic nations whose homeland is in this territory. Anyone who rejects that there are two communities have legitimate claims to democratic self-determination. Anyone who rejects those premises is fundamentally on the same side, and the wrong side, no matter what flag they fly.

"Us Too-ism" Turns Off the Normies

You may have heard that a group of Columbia University administrators were sacked after someone posted screenshots of text messages where they were snarking at a panel on campus antisemitism they were in the audience for.

When that story broke, I was (and largely remain) of two minds on this. On the one hand, all of us have snarky texts that ripped out of context probably look pretty bad -- this sort of policing really doesn't end well for anyone. On the other hand, university administrators have a pretty grim reputation right now of treating antisemitism claims as trivial annoyances by bad faith actors, and these messages fit into that paradigm. There's a fundamental trust problem: many Jews do not trust that Columbia administrators are interested in seriously tackling antisemitism, and see these texts as verifying that disdainful dismissal; many academics do not trust Columbia's leadership to respond to antisemitism complaints with anything but reflexive brute force, and see this response as yet more kowtowing to an unappeasable media feeding frenzy. Both camps, in all honesty, have reasons for their mistrust.

But that's not what I what to concentrate on here, exactly. Rather, I want to take stock of one response in particular -- that of Kevin Drum. I'm a longtime fan of Drum's writing, which I think is a good exemplar of reasonably thoughtful and well-informed center-left "normie" politics. Seeing how he was responding to Israel's Gaza campaign was a good barometer of what people not in the hothouse of terminally-online left politics were thinking; in particular, it suggested that the belief that the current Israeli government is a fundamentally bad actor is not one confined to the "usual suspects" on the far-left.

In any event, one component of the Columbia controversy was the claim that the administrators themselves indulged in an antisemitic "trope" -- the suggestion that the panelists were hyping up instances of antisemitism as a "fundraising" opportunity allegedly feeding into claims about Jewish greed and/or perfidy. To this, Drum gave the textual equivalent of a giant eyeroll. He explained that he's long been suspicious of the word "tropes", which he said "in practice [is] used exclusively to imply someone has said something vaguely offensive without having the receipts." And this case, for him, fell squarely into that category:

I took a look at these text messages a couple of weeks ago and came away believing there wasn't much there. Since then the entire text conversation has been released, but it doesn't change things. During a panel discussion about antisemitism, the three deans in question shared private texts that you could fairly describe as snarky or irreverent. But that's about it.

To the Columbia administration, however, which was under siege from outraged alumni demanding that the three deans (plus a fourth) be fired immediately, the texts conveyed "a lack of seriousness about the concerns and the experiences of members of our Jewish community."

This is precisely backward. What the deans did was fail to show unconditional earnestness and obeisance toward every last grievance lodged by a particular community, no matter how ridiculous or overstated. This is apparently the price of admission to progressive society these days.

This whole thing is bonkers. The grievances of specific communities deserve to be given fair consideration, but they don't automatically demand absolute deference. In this case, the deans privately exhibited moderate skepticism toward a few of the claims from the panelists, some of it expressed a little bit caustically. None of it could reasonably be called antisemitic, and at most they deserve a verbal reprimand. Instead they're all out of jobs.

Drum thinks that antisemitism allegations here are thin gruel. Maybe you disagree. But one argument I've often heard, as against the claim that Columbia is overreacting here, is to say in essence "maybe so, but that ship has sailed -- every other group gets this sort of response when they claim to be the victims of discrimination, so it's only right that we the Jews do too." It's a version of what I've termed "us too-ism", and I've already outlined many of its pitfalls, not the least of which is the fact that the perception of what "every other group gets" is often not matched by reality. 

But Drum's reaction illuminates yet another problem: for many of the people who do perceive that this is what colleges "normally" do, they don't view that as a good thing. They view it as a bad, toxic practice they at best generally roll their eyes at. Indeed, I suspect most of the "normie" center-leftish Jewish commentators take that general perspective: when we're not talking about antisemitism, they view this sort of heavy-handed administrative response as indicative of wokeness gone wild, which is why when we are talking about antisemitism they defend similar behavior not on its own merits but rather via the us-too bank shot of "well, it's what everyone else gets." The problem is that when non-Jewish normies see this happening, they don't think "aha -- now the chickens have come home to roost, for the Jews also get to claim this bounty!" They think "oh great, yet another instance of overzealous activists peddling a grievance scoring one for cancel culture," and just slot Jews and anti-antisemitism politics into their mental category of "minorities who face some genuine discrimination but are taking things too far."

Again, all of this is aside from whether Drum is right "on the merits" to dismiss the antisemitism angle here. The point, rather, is to emphasize yet another problem with the "us too" argument -- more often than not, its reception outside the Jewish community is not going to be "well, fair is fair"; it's going to be to associate Jews with whatever malformed and exaggerated perception of identity politics gone wild already prevails within the broader public. It still might be a hit worth taking if one genuinely can defend the practices and arguments in question on their own merits, without relying on the crutch of what other groups are imagined to get. But if one's main basis for trying to draw blood is simply the "us too" entitlement, then it's definitely a fool's errand.

The Exceptions Aren't Exceptional, They're Just Bad

A few days ago, an academic journal run out of the University of Minnesota apologized after informing a would-be contributor from Israel that it was refusing to consider submissions from scholars affiliated with Israeli universities.

Today, the Columbia Law Review website is down, reportedly due to the publication of an article by a Palestinian legal scholar on the "Nakba" that occurred in the wake of and as part of Israel's war of independence and its establishment as an independent state. We're still getting details, but the word is that the law review's board of directors (comprised of faculty and alumni) sought to overrule student editors who wished to publish the piece and, failing to do so, took down the website.

I've really found valuable and thoughtful Paul Horwitz's comments on cases like this, and so too here. In particular, I agree with him that it's not right to refer to the Columbia incident as part of a Palestine "exception" to free speech or academic freedom, not because it isn't a breach of academic freedom norms (it certainly seems to be), but because it isn't especially exceptional -- whether we're focused narrowly on Israel and Palestine (as the Minnesota case, above, illustrates) or more broadly on "controversial" topics and issue areas.

I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception.

It is quite clear that speech that is harshly critical of Israel quite regularly faces sanction and obstruction that does not comport with free speech or academic freedom norms. But that's not an exception, that's an instantiation of a larger part that free speech and academic freedom norms have many fair-weather friends and so find themselves under serious pressure on the regular. This isn't to say that they don't do important work -- they do, and a lot of speech that probably would be suppressed ends up being permitted because these free speech principles do carry a lot of weight. But the notion that they are impenetrable juggernauts who only rarely and idiosyncratically find themselves challenged is just not true. One reason I try to defend these norms so vigorously is precisely because I recognize that their fragility is the norm, not the exception.

In general, I think I have a more positive outlook towards student-edited law journals than Paul does, and so generally take a dim view of any sort of faculty or administrative meddling in journal affairs (the notion that a faculty or alumni-comprised committee has any role beyond, perhaps, the most soft-touch advisory capacity, in determining what articles the Columbia Law Review does or doesn't publish is absurd to me). So it should come as no surprise that I also strongly agree with Paul that even if there were reasons to think that the student editors acted in a fashion that departed from their own normal rules or processes in accepting this article (which may or may not be true), any interventions that hypothetically might have been justified cannot take the form of an ad hoc, last minute decision to pull the piece from publication altogether.

Indeed, assuming that this article is slated to be part of CLR's print volume, I'm not sure what the board of director's end game is here -- are they going to pulp the entire issue? Even if the article is bad, wrong-headed, offensive (and I haven't read it, so it may be none or all of these things), I see no reason why any of those (for better or worse not especially exceptional) sins cannot be addressed via the normal mechanisms of academic inquiry and response. Prior restraint is not the right move. And if the Columbia board did what it is alleged to have done here, it is shameful and outrageous -- no less so if it is not "exceptional".

UPDATE: The Columbia Law Review board has issued a statement explaining why it took down the website. On my read, nothing they say justifies the decision. The only thing that's potentially eyebrow-raising is the claim that the piece was not selected via the normal article-selection process. But this probably (though not certainly) has less than meets the eye: it is hardly unheard of for a law review to solicit a piece outside the normal article-selection channels, which easily could be (but really shouldn't be) called a departure from the "usual processes of review or selection." For example, when I was a law review editor most pieces went through the articles committee (which I was on), but our book review editor had essentially carte blanche authority to solicit book reviews on his or her own initiative. While there might be some valid basis for complaint if this article was unusually sequestered from (actual, extant) norms and practices of how articles move through the CLR process, such problems do not to my mind justify the extraordinary remedy of taking down the website. The short version is that even if (and this not clear) there are valid process-based objections to what (some members) of the Columbia Law Review did here, that does not mean that taking down the website is an appropriate remedy. As Alexandra Lahav wrote in a thoughtful thread, sometimes events transpire such that there just isn't a way to "preserve the status quo ex ante."

One thing that hasn't been mentioned but which I think may be lurking in the background here is the recently announced boycott of Columbia University graduates by a suite of right-wing judges who've made very clear their intention to inflict collective punishment on the Columbia community for (real or perceived) bad behavior by particular actors. Threats like this understandably could make members of the Columbia Law Review who were not part of (and were not given the opportunity to be part of) the publication decision especially sensitive -- they have reasonable basis to fear they will be held responsible and retaliated against for choices they did not make and might not have even been aware of. I'm sympathetic to those students, but ultimately, the people who have put them in that position are the judges and other actors who have decided to endorse indiscriminate academic blackballing as a political tactic. As much as these students are being put in an unfair position -- and they are -- the board should not have cowered in the face of this blackmail. The principles of academic freedom are too important to be allowed to yield even in the face of a credible threat of external retaliation -- this is true when the boycotters are right-wingers furious about pro-Palestinian advocacy, and it's true when the boycotters are left-wingers livid about Israeli inclusion.

On Loving "Campus Jews" While Hating Campus Jews, Part II

A few years ago, I wrote about how many external efforts to express "solidarity" with campus Jews facing antisemitism were defined by their obvious and overt disdain for, if not antagonism towards, campus Jews. What passes for "solidarity," too often, is intentionally and deliberately indifferent to the actual positions and desires of the students they're supposedly coming in to support. As I wrote then:

It is no revelation to say that Jews on campus experience their share of antisemitism, and deserve our support. But one of the more frustrating aspects of that reality is how that "support" often manifests in a fashion that is almost tauntingly unconcerned with what the Jews on campus actually want. "Support", too often, is not support at all -- it is a way for outsiders to exploit a headline or to ride their own hobbyhorses, and the campus Jews themselves are an afterthought....

[T]hose who drive the Hitler truck "in solidarity" do not at all care whether the Jews they "support" find their intervention all that supportive. By golly, Berkeley Jews are going to get this allyship whether they like it or not! And this is hardly an isolated event. Jewish students at the University of Michigan were livid at the Canary Mission putting their campus under the spotlight, complaining that it was making the environment for Jewish students on campus worse rather than better. No matter. Canary Mission's support for campus Jews is cheerfully indifferent to whether campus Jews feel supported.

Outside actors want to come in hyper-aggressive, but when campus Jews express frustration and try to say "you are not helping", they're met with dismissal verging on outrage. The outsiders love and support "campus Jews" as an abstraction, but they find the actual, flesh-and-blood campus Jews to be soft, weak-willed, squishy, and just overall contemptible.

Consider what happened recently at UCLA, where a group of pro-Israel counterdemonstrators (and if ever the phrase "outside agitators" was appropriate, here it is) assaulted a pro-Palestine encampment, leading to some of the most brutal and wide-scale incidents of violence we've seen over the past few weeks. While obviously chains of connection are at this stage blurry, it does seem that the counterprotesters were among the groups being supported by various external "pro-Israel" organizations. Unsurprisingly, the actual Jewish students at UCLA did not feel thankful or more secure by their "supporters" taking this action; to the contrary, it has decimated whatever social standing and moral credibility mainline Jewish students might have possessed with the broader UCLA community. And in the vein, UCLA students issued a statement that was a crystal-clear admonition to their putative "supporters":

We can not have a clearer ask for the off-campus Jewish community: stay off our campus. Do not fund any actions on campus. Do not protest on campus. Your actions are harming Jewish students.

The bold is original. And to be clear: the students who issued these statements are not aligned with the protesters. They identify as Zionists. They don't deny that there has been antisemitism amongst the protesters or on campus in general. That sort of very normie campus Jew is who is trying to communicate the message "you're not helping". And that, sadly, is exactly the sort of campus Jew who historically has been completely and utterly ignored by the rush of outsiders scrambling to demonstrate how much they care about "campus Jews".

In that vein, consider a recently announced academic boycott of Columbia University graduates by about a dozen federal judges, including Fifth Circuit Judge James Ho, on the grounds that Columbia has become an "incubator" of antisemitism. Is there any indication that Columbia's Jewish community wants "support" in this fashion? Is there any doubt that they view these judges' announcement as only making their position worse? No and no. But it doesn't matter, because this line of criticism assumes that Judge Ho and company want to help Columbia's Jewish community, when the truth is absolutely the opposite.  The abstract choice to "defend" campus Jews is paired with a palpable disdain for the campus' Jewish community.

This is at least the second time that Judge Ho has led an academic boycott campaign targeting universities on speech grounds (he sure does love BDS!), and much of what I said the last time applies here as well. It's serendipitous, but also no coincidence, that my introduction to my post about Ho's boycott "on behalf of" (but also targeting) Yale conservatives was a story about my own experience enduring harassment that began as misbegotten "solidarity" with me as a Berkeley Jewish student. The troll in question came to hate me because I was a Jew who didn't hate my time at Berkeley, and the only possible explanation for that sentiment in their eyes was that I was a self-hating Jew. 

Here too, one might find it strange that the very students these judges purport to be protecting -- beleaguered Jewish students attending Columbia -- are also covered by the boycott pledge. But this is intentional -- Ho et al fundamentally view any Jew who decides to attend Columbia for any reason as a traitor who deserves what's coming to them. What was then a parallel now is a traced-over line: the "solidarity" with campus Jews actually a thinly veiled form of contempt for any Jew who even slightly deviates from the orthodoxy James Ho wishes to impose upon the Jewish community.

There are, as always, many reasons why a Jewish (or non-Jewish) student might choose to attend to Columbia. Maybe there is a particular program they want to study in, or professor they wish to work with. Maybe they're curious to learn from people whose views are radically different than their own. Maybe they're inspired by the recent election of an Israeli as student body president of one of Columbia's colleges. Maybe they simply don't find the atmosphere as toxic as a bunch of Texas federal judges infer from afar. 

Ot maybe some of them just agree with what one Jewish student said in response to others who urged her to leave Columbia in the face of antisemitism: "It’s very important to stand our ground and show them they can’t force Zionist Jewish students out of their campus."

To any Jewish student who has thought along that line, who has said that they're not going let the risk of bullying or bad actors stop them from getting the best education possible, Judge Ho has a loud and clear message: "Get fucked." He doesn't care about you. He thinks you're absolute scum. In this, he shares a commonality with many of the outsiders who say they're supporting "campus Jews" while raining contempt upon campus Jews. Every Jewish student in America can and should internalize that message loud and clear.

Uniters and Dividers

A BDS resolution failed at Columbia this week. Commentary, of all places, went out of its way to note that J Street U was "an important ally" in the fight, and framed its column around the importance of uniting the Jewish left and right in the anti-BDS struggle.

Meanwhile, at an anti-BDS conference at the UN, South Carolina State Rep. Alan Clemmons (R) told J Street U students in attendance, and who were asking for advice on how to combat BDS, that they were "antisemitic". His remarks were reportedly met with rousing applause. Clemmons has since taken to the Wall Street Journal to argue that the bare usage of the word "occupation" is antisemitic as a form of "demonization" (referencing Natan Sharansky's "3D" test of antisemitism as pertains to Israel -- double-standards, delegitimization, or demonization).

No matter what one's views are on the Israeli/Palestinian conflict, the notion that simply calling Israel's domain over the West Bank "occupation" is a form of "demonization" is patently ridiculous. If J Street U is antisemitic for using the term "occupation", then so are the Israeli Supreme Court and former Israeli Prime Minister Ariel Sharon.

Frivolous arguments like this delegitimize Sharansky's quite useful framework for sussing out the links between antisemitism and anti-Zionism. They also do great harm to an organization that has been a critical ally in fighting BDS on campus.

Anti-BDS coalitions and pro-Israel networks alike need J Street U far more than we need misguided political hacks like Clemmons. The Israel Action Network at least had the grace to offer some backing to J Street U following this scurrilous attack. The other key players in the anti-BDS movement -- particularly those who were involved in the event Clemmons spoke at -- need to step up as well.

UPDATE: Both the AJC and Hillel have now denounced the attack on J Street U.

Still Here

Finals studying is taking a lot out of me, along with other annoyances on my plate. Stuff has been accumulating on my browser, but I haven't even mustered the energy for a roundup.

* * *

Texas conservatives are unhappy that their uber-conservative speaker also happens to be a Jew.

New comments by Helen Thomas about how we're all owned by the "Zionists" have prompted Detroit-Mercy to withdraw their sponsorship of a diversity award named after her.

For the last time, progressive Zionists aren't Zionists in spite of our progressivism, but because of it.

An interesting exploration of Columbia's local Palestinian solidarity chapter, and how its understanding of "solidarity" means that it institutionally refuses to communicate with the local campus Hillel (individual members are free to talk as they please, but the group has ruled out any official dialogue events to try and better understand the positions or sentiments of the Columbia Jewish community).

As time passes, it shouldn't be surprising that the taboos which might have once precluded Israel's fascist parties from associating with European fascist parties are falling away.

Israel's woefully inadequate fire responsive services may be the "Katrina moment" that finally causes the majority to recognize just how much of their resources are being squandered on Haredi subsidies and settler fantasies.

Look, it's not that complicated: Your judges are "activist", mine are "engaged".

Why Give Up Now?

I just got an interesting email from Columbia Law School:

Dear David Schraub:

Thank you for your continued interest in Columbia Law School. We are
excited to report to you that we have received all the required components
of your application and that your file is now complete. We will forward
your file to the Admissions Committee, which will evaluate it in the order
in which it was completed. Good luck in the admissions process and we hope
to welcome you here as a member of the Class of 2012!

Best wishes,

Office of Admissions

Columbia Law School
Mail Code 4004
435 West 116th Street
New York, NY 10027-7297
Telephone: (212) 854-2670
Fax: (212) 854-1109
E-Mail: admissions@law.columbia.edu

I hate to say it, but I have some disappointing news for Columbia as to the status of my law school admissions decisions....

UPDATE: They just emailed me to say it was a computer glitch (obviously). I wrote back to wish them luck as the acceptance decisions finish out.

Also, now that we're over a year distant, I think I can safely reveal that it was Columbia which asked for my fall term grades several months after receiving my application which included, you guessed it, my fall term grades. This led to a very confused David for awhile.

Astute readers will guess, correctly, that this means NYU was the "already-admitted U" which acknowledged my application and promised a decision by April two weeks after admitting me to their fine school.

I'm so bad at keeping secrets.

Laughter

I wanted to write about Iranian President Ahmadinejad's much harped upon speech before Columbia University. But I was somewhat conflicted, and was having difficulty getting words to paper. But I think two posts, in conjunction, get most of my feelings straight.

First, from the Carpetbagger Report, the image of students simply laughing at the Iranian President when he started spouting off non-sense (in this case, saying that Iran didn't have any homosexuals).

And second, from the conservative blog The Nose on Your Face (happily linked to by Powerline), imagining the questions Columbia's liberal student body might ask Ahmadinejad -- questions that applaud his dictatorial policies, laud his hatred of Israel, and...condemn ethnic slurs? Because what really would reflect well on Columbia and America would be a sophisticated critique of Ahmadinejad's Holocaust denial, while having him "pelted with Slurpee cups and greeted with cries of 'Hey cabbie!'"

One of these responses showcases the best America has to offer when faced with a spokesman for evil and tyranny. One of these, less so.

Ahmadinejad is a crazy man, and even though is power in Iran is vastly overstated, he still has the power to real damage and violence that can effect American interests (not to mention moral interests) the world over. We would do well to take that capacity seriously. But one thing I do not fear about Ahmadinejad is his ideas. Put him in a room with America's brightest young minds -- people who do not need to worry about whether their dissent will cause them to be dragged off and shot -- and his ideas will rapidly receive the reception they deserve. I can think of no better way to combat his ideological poison than this: give him a mic, listen attentively, and then laugh him off the stage.