Tuesday, June 11, 2024

From Scarsdale To Dearborn, Enough with the Dogwhistles Already

Incumbent Rep. Jamaal Bowman (D-NY) is facing a tough primary challenge from fellow Democrat George Latimer. Much of the heat in the primary has centered around Israel (Bowman is a harsh critic; Latimer has AIPAC backing), and in that context Latimer claimed in a public debate that Bowman's constituency is not the local residents of New York, but rather "Dearborn, Michigan" (and "San Francisco, California"). Dearborn is well-known for its large Arab and Muslim population, and so Bowman quickly called him out for the racist "dog-whistle".

I, of course, immediately harkened back to not-so-fond memories of Antone Melton-Meaux's 2020 primary challenge to Ilhan Omar,* where Omar's campaign sent out a mailer highlighting her challenger's donor support, singling out one from the heavily Jewish suburb of "Scarsdale, New York" (all of the named donors in Omar's mailer were also Jewish). This, too, was pounced on by Omar's opponents and said to be an antisemitic dog-whistle.

Latimer's defenders say he was merely highlighting Bowman's lack of local support. Omar's defenders likewise contended she was being unjustly smeared as a critic of Israel.

So, is this sort of attack a dog-whistle? Quick -- everybody switch sides!

In all seriousness, if you condemned the Omar campaign for its "Scarsdale mailer" you don't get to give Latimer a pass on this. And likewise, if you poo-pooed the Scarsdale mailer as a ginned up controversy over nothing you can sit right down in your high dudgeon over the Dearborn remark.

(My answer: Both instances were shady and both politicians deserved to be called out on it.)

* I'm bemused to rediscover that my blogpost on this controversy was titled "I Have To Talk About Omar and Melton-Meaux, Don't I?", which really captures a certain mood, doesn't it?

Saturday, June 08, 2024

The Redemption of Noa Argamani

The Israeli military announced today that it had successfully rescued four hostages from Hamas captivity, including Noa Argamani. Argamani was a particularly high-profile hostage because video of her abduction was one of the first pieces of footage Hamas released after October 7, showing her pleading with her captors "don't kill me!" as she was taken from the Nova music festival massacre and separated from her boyfriend (whose whereabouts remain unknown).

The Israeli operation which freed Argamani and her compatriots also reportedly killed approximately two hundred Palestinians, according to Hamas figures. These, as always, do not distinguish between civilian and military casualties; we can safely assume there is plenty of both (it is apparent that there was a significant military presence guarding the hostages).

Two days after October 7, I quoted Noa's father Jacob saying the following:

Let us make peace with our neighbors, in any way possible. I want there to be peace; I want my daughter to come back. Enough with the wars. They too have casualties, they too have captives, and they have mothers who weep. We are two peoples to one Father. Let’s make real peace.

That quote came at the bottom of a post titled "What Will You Say 'No' To?" It was a warning to Israel supporters that they needed to decide, then and there, what sort of response or retaliation would not be justified in the wake of Hamas' attack, citing specifically Yoav Gallant's threat to starve out Gaza's population. There's plenty that Israel justifiably could do in response to Hamas' attack, but what would we not support Israel doing? What is too far? What must be taken off the table?

Was it not unfair to level that demand mere days after October 7? Maybe it was, though if Jacob Argamani could think along the above lines, then I'd argue so could anyone. Unfair or not, however, I said that we had to think about those questions then, because 

we just witnessed in real-time a catastrophic failure to grapple seriously with this question on the part of those who've pledge to stand with Palestinians and Palestine. Suddenly forced to decide whether, in the wake of occupation and besiegement, a Palestinian response of "a systemic campaign of house-to-house kidnappings, rapes, and executions" is a valid one, we saw far, far too many individuals unable to say "no" (or at least, say it with any level of decisiveness). This failure stems directly from the tempting broth that assures us that, if the provocation is severe enough and the injury severe enough, no amount of "response" could ever be disproportionate. And so we see that, if you refuse to let yourself think that anything could be "too far", there's no end to the depths of hell you may find yourself apologizing for.

Eight months later, that post is deeply embittering to read. None of this had to happen. Most obviously, October 7 didn't have to happen and the hostages didn't need to be taken. Yet even now, writers like Adam Shatz cannot help themselves in describing the "exuberance" over October 7 as a "prison breakout," "a daring assault on Israeli bases that devolved into hideous massacres" (it did not "devolve" into anything; the sowing of terror and death amongst Israel's civilian population was the primary tactical goal of the operation -- there is essentially no evidence that the primary or even significant targets of Hamas' operation were military bases). Likewise, the warnings to the Israelis that their righteous fury over October 7 did not license the imposition of an indiscriminate siege and turning the entire Gaza Strip into a free-fire zone fell on deaf ears, and now the entire nation is on trial for genocide.

Nobody paid heed, and nobody has seemed to have learned anything. In the months that followed October 7, there were innumerable opportunities to turn off this path, with plenty of blame to go around for why we didn't, but the main culprit is simple: both Israel and Hamas want this war to keep going. Obviously there are some conditions where they'll accept peace; but those conditions are quite far apart, and so for the most part they're both happy to keep the war going rather than deal with the fallout of an actual deal

So now tens of thousands of people are dead, and for what? Noa Argamani is home, but Noa Argamani started at home! Noa Argamani being home was the world on October 6! We're back to where we began, except with unfathomable death and destruction and trauma for uncountable numbers of people.

I'm happy and relieved and overjoyed that Noa Argamani has returned home -- the redemption of Noa Argamani is an unqualified and unadulterated good. But that joy is tempered by the fact that none of this had to happen at all. We could have lived in a different world.

Wednesday, June 05, 2024

A Jewish Studies Purge at UC-Irvine?

There's a brewing controversy bubbling up at UC-Irvine, where Jewish students are protesting the decision to terminate the contract of a popular lecturer who had been teaching a class on Jewish Texts under the auspices of the campus' Center for Jewish Studies. The lecturer, Daniel Levine, is a Rabbi affiliated with the campus Hillel chapter. There are two open letters currently circulating in support of Levine and condemning his termination, you can read them here and here.

There are a lot of moving parts here, and situations like this almost always have lots of little nooks and nuances that can be hard for an outsider like myself to spot. But here's my best attempt to summarize what appears to be going on.

The Center for Jewish Studies is not an independent department at Irvine. It is run as a minor out of Irvine's humanities division and is specifically overseen by the Department of History. Levine is not a permanent member of the faculty, but he was by all accounts a popular teacher who was well-liked and respected by the campus' Jewish community. The official rationale for his non-renewal is that two new tenure-track hires with interests in Jewish Studies mean that his course can be taken over by permanent faculty members, offered every other year. The Jewish students counter that the new faculty members' specific subject-matter expertise does not seem tailored to the Jewish Texts course; further, they believe that Rabbi Levine would have been able to maintain teaching the class on a yearly (rather than biannual) basis.

But there's a bigger issue lurking. Among the demands of UC-Irvine pro-Palestine protesters has been for the university to cut ties with "Zionist" organizations and individuals. The chair of Irvine's history department, Susan Morrissey, is part of the Faculty for Justice in Palestine group which has endorsed these demands. The suspicion amongst the Jewish students is that Rabbi Levine was ousted from his position as a backdoor means of instantiating these demands. This fear is amplified by the fact that both of the new hires appear to be, at the very least, very sharp critics of Israel -- one was a leader of Jewish Voice for Peace at UCLA, and both are signatories to a letter written three weeks after the October 7 attack demanding (among other things) "the end of all U.S. funding to Israel immediately." In essence, the students believe that Morrissey effectively instituted a purge -- replacing a Jewish Studies lecturer who was embedded in the campus Jewish community but (or perhaps, and therefore) was tainted by his association with Hillel and "Zionism" with alternatives who would be less effective in serving the Jewish community (and the community of students interested in the Jewish Studies minor) but were more ideologically congenial and aligned with the political demands of Prof. Morrissey and the pro-Palestine protesters.

None of the above is incontestable. The public explanations from the powers-that-be at Irvine might be entirely on the level. It is far from uncommon that the sorts of considerations that drive faculty hiring and teaching assignments (particularly at a large research university) do not align with what undergraduates believe or expect should motivate who ends up in the classroom. Other than the tidbits identified above, I have no specific knowledge regarding either of the two new tenure-track hires at Irvine; they may be able to cover Levine's class with aplomb. And certainly, there is nothing intrinsically odd about replacing an external part-time lecturer with a tenure-line faculty where possible.

Nonetheless, it is abundantly clear that the Jewish Studies contingent at Irvine has ample reason for both mistrust and discontent. From their vantage, they're losing a great teacher and community member with inadequate replacement, for reasons that seem inscrutable, in a context where their very discipline and their broader standing in the Irvine community seem to be threatened by powerful forces, including the very campus leaders who made the decision at issue here. When a powerful university actor says they support doing a thing (here, cutting ties with the "Zionists"), and then that actor does something that is to say the least compatible with that thing (terminating Levine's appointment), observers are entitled to infer that the thing happened for the reasons that the actor publicly articulated. That isn't dispositive, but its certainly probative, and nobody can or should fault the students for not buying that Morrissey is acting for neutral and purely professional reasons.

In essence, Morrissey put herself in a position where she lost the presumption of trust that might normally accord to decisionmakers in her role. No matter what the "truth" is (which may be unknowable), we have a situation where deep damage has been done to the Jewish Studies minor and the relationship between its overseers and the community it purports to serve. It is clear that, to say the least, the Jewish Studies community does not feel as if the powers-that-be who made the decision to terminate Levine and who are guiding the new direction of the Jewish Studies minor are receptive and responsive to the views of the most-affected stakeholders (maybe if they occupied someone's office? But alas, the hypocrisy trap....).

In any event, at minimum, the Jewish Studies students and the broader Jewish community at Irvine are entitled to more receptivity from Professor Morrissey; to believe that her orientation towards them is not one of hostility and that she views them as a stakeholder to be engaged with, not an obstacle to be overcome. If she cannot restore that relationship of trust, then it may indeed be better if the Center for Jewish Studies be moved into a different portfolio, with leadership that can do the job that she cannot.

Tuesday, June 04, 2024

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

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.

Sunday, May 26, 2024

Contested Presuppositions in Classroom Assignments

This is a pedagogy question for my fellow professors.

While not necessarily completely unavoidable, an essay prompt will often encode certain presuppositions into a writing assignment. In a class on the Holocaust, an assignment asking students to "explain how Nazi propaganda dehumanized Jews" builds in an assumption that Nazi propaganda did dehumanize Jews (we take that it did for granted, and ask only for the process to be explained).

That example is, I think reasonably innocuous -- few (I think) would view such an essay prompt to be out-of-bounds even if we could imagine a perhaps still-broader question ("evaluate the degree to which Nazi propaganda dehumanized Jews" -- but query whether that question actually necessarily will yield the same pedagogical results as the original). 

But I've written before on the dangerous power of presuppositions, and we can of course imagine other encoded presuppositions that are considerably more problematic. Consider in an American politics class: "Explain how the election of Donald Trump in 2016 damaged the American political fabric and weakened our constitutional democracy." This, I think, would be an inappropriate essay prompt (even though I happen to agree with the encoded presuppositions: Trump's election did damage our nation's political fabric and did weaken our constitutional democracy). The presuppositions are ones under active political dispute; it feels unfair and biased to structure the assignment so as to prevent (or at least significantly obstruct) a student from contesting the premises. And this isn't necessarily just a problem with individual assignments either -- entire classes can struggle with what they presuppose.

One might think the answer is that teachers should try to avoid contested presuppositions altogether. As it happens, my assignments I think do largely (albeit unintentionally) avoid this problem: my large class exams are issue-spotters based on invented fact patterns, and my seminar writing assignments are extremely open-ended research and reaction papers. Nonetheless, I recognize that for many teachers and classes there is value in being more specific, and stipulating certain presuppositions can be necessary as a means of diving deeper into a given domain. Returning to our Holocaust class, one can absolutely see the value of an assignment like this: 

"Nazi Party propaganda played an important role in dehumanizing Jews in the German imagination. Read the attached Der Sturmer article, identify three dehumanizing tropes it employs, and explain why they may have been effective in successfully dehumanizing German Jews."

Again, this assignment builds in a host of presuppositions -- that Nazi propaganda dehumanized Jews in general, that this particular article did so as well (in at least three different ways) -- and it somewhat demands that students "pick a side" (by making the arguments why the examples were effective as tools of dehumanization). But while I can see the importance of permitting any of these presuppositions to be contested, I also see the pedagogical value of bracketing that contest and asking students to make more specific appraisals.

The question, then, is where one draws the line. What makes this assignment pedagogically valid (which I think it is), whereas the "Trump damaged America" one pedagogically suspect (which I also think it is)? Surely, it is not a valid defense of the Trump assignment to say "sure, I can see the value of contesting whether Trump in fact damaged the republic, but here we're going to bracket that debate and just stipulate that he did so we can dive into the mechanisms in more detail."

My sense is that while even contested presuppositions cannot be taken off the table entirely, as professors we have a professional responsibility to be extremely judicious in how we use them, because they're incredibly tempting vectors to insert our own political judgments under the guise of pedagogical depth. That sort of standard ("be extremely judicious") is one simultaneously love and hate: I dislike it because it's vague and doesn't provide guidance, but I like it because it emphasizes that there isn't any substitute for actually trying to be virtuous and contain our bad impulses -- the lack of a hard rule means we're the guardrail against a political free-for-all. 

But curious for input from my fellow profs on this. Is this something you've thought about?

(I was inspired to think on this by this story of a DePaul adjunct who was removed from her microbiology teaching position after offering an optional assignment where students were asked, in the context of Israel's attack on Rafah, to "communicate the impacts of genocide on human biology, and the creation of a decolonized future that promotes liberation and resists systemic oppression," including "describ[ing] the specific ways in which institutions are complicit or actively engaged in supporting ethnic cleansing/genocide." The assignment prompt contains a host of contested presuppositions -- and note again that "contested" doesn't mean "false", see my Trump example -- though there arguably were other issues as well involving disciplinary scope. But in any event, I deliberately wrote this post to try and abstract from that particular incident and see if there were more general intuitions we might be able to bring to the table on questions like this.)

Friday, May 24, 2024

Talking Antisemitism (and Islamophobia) in Eugene

Earlier this week, I traveled down to Eugene to give two talks (one for students and the general public, the other for faculty and staff) on Islamophobia and antisemitism with Hussein Ibish.

I don't have any truly wild stories to report. We did have one disruption (to which I remarked "we beat the spread!") -- for those of you keeping score, it was a "pro-Israel" disruption -- but he was escorted out with relatively little incident. But overall, the audiences seemed engaged and happy to have us. I had two students separately stop me on the street well after the event was over to say how much they appreciated the event, one of whom was a leader of the campus chapter of J Street U, which was responsible for a very thoughtful letter regarding issues related to the campus encampment and Israel/Palestine questions more broadly that I encourage you to read.

Speaking of which, the university reached an agreement with protesters to disband the encampment while we were out at dinner. One of the administrators involved in the negotiations was on a text chain dealing with some of the issues while we ate! Living history, indeed.

All that said, the most exciting that happened was probably seeing if my Nissan Leaf could travel from Portland to Eugene on a single charge (answer: yes, but we were at 6% when we arrived at the hotel and 2% when we got home). I also started to come down with a cold on the second day (which I'm only just starting to pull out of now), so that was unpleasant. But for the most part, this felt like a successful event in front of a receptive audience that was happy to hear people try to tackle difficult issues about antisemitism and Islamophobia with rigor and care. I'm grateful to the University of Oregon community for having us, and I hope that they found it to be as fruitful and productive as I did.

Thursday, May 23, 2024

Gerrymandering as Constitutional Entitlement

I haven't had the chance to read the Supreme Court's decision today in Alexander v. South Carolina, where the 6-3 Republican majority radically circumscribed the ability to bring racial gerrymandering claims in circumstances where (as often will be the case) there is significant overlap between racial and partisan gerrymandering. I was struck, however, by Nicholas Stephanopolous' analysis which suggests the Court's new rule is functionally that a racial gerrymandering plaintiff must "submit an alternative map showing how the state could maintain its plan’s current partisan balance while fixing the alleged racial gerrymandering," In other words, if an alleged racial gerrymander results in a 6-1 GOP/Democratic House map, plaintiffs must show that there is an non-racially gerrymandered map that also yields that same partisan split.

Alexander is the latest case to emerge out of the gibberish that is Rucho, and the impossibility of disentangling racial gerrymandering (nominally unconstitutional) from partisan gerrymandering (effectively permissible) under conditions of extreme racial polarization. Where there is near-complete overlap between "Black voters" and "Democratic voters", how does one decide if a congressional map which packs all the Black/Democratic voters into a single misshapen district is a "racial" or a "partisan" gerrymander? 

The logic behind the majority position in Alexander is that if one can't create a map that yields the same partisan end goal as the map being challenged, that suggests that the status quo map was chosen not for racial reasons, but rather because it better effectuated the goal of partisan gerrymandering that would otherwise be impossible to achieve. "We didn't draw the districts this way because it drew all the Black voters into a single district; we drew them this way because it was the only way to get the desired political slant."

But this gets things exactly backwards. Even assuming that partisan gerrymandering is constitutional (and it's worth noting that technically, Rucho doesn't say that -- it says it is a political gerrymandering claims are non-justiciable political questions, which is not the same thing), it is not a constitutional requirement that states must be allowed to do it under any circumstance. The more natural conclusion is that if you can't successfully engage in a partisan gerrymander without engaging in racial gerrymandering, then sorry, you don't get to partisan gerrymander (or at least don't get to do so to the same extent). The rule against racial gerrymandering places a limit on the ability to partisan gerrymander.

The majority's rule, by contrast, treats partisan gerrymandering as a constitutional entitlement. Any constitutional rule or principle which disenables a state from engaging in partisan gerrymandering to the fullest extent it desires must yield. Otherwise clearly impermissible and unconstitutional conduct becomes licit if it is the only way a state can implement its God-given right to gerrymander.

This is not the first time the Court has made this mistake. I flagged a similar error in the Court's Glossip opinion relating to Eighth Amendment challenges to state execution protocols. The Court there said that a prisoner challenging an execution protocol as cruel and unusual punishment cannot prevail simply by showing that the state's procedure is barbarous or tantamount to torture. The prisoner must also identify a valid execution protocol, accessible to the state, that he would deem permissible. What happens if there is no such protocol -- if all the methodologies available to the state would be agonizingly painful? The logic of Glossip is that in that case, the state is allowed to torture prisoners to death, because the state simply has to be allowed to execute people.

In both cases, the Court is making a basic mistake, conflating constitutional permissibility with constitutional entitlement. It's obvious when you think about it. The state is permitted to try and solve crimes. The state is not allowed to violate the Fourth Amendment, even if doing so would allow it to solve more crimes than if the Fourth Amendment was not enforced. If the state said that, for every claimed Fourth Amendment violation, a defendant must provide an alternative policing protocol that would allow it to solve as many crimes as if it were permitted to violate the Fourth Amendment freely, and if he can't, then the Fourth Amendment can't be enforced, that would be absurd. The Fourth Amendment places a limit on the ability of the state to solve crimes.

So too here. It might (for sake of argument) be true that capital punishment or partisan gerrymandering are not unconstitutional in the abstract. But that does not imply that in practice there must be a constitutionally-viable pathway to do either of these things. If the state can't figure out a way to conduct an execution that doesn't torture people to death, then it can't execute people. If the state can't figure out a way to partisan gerrymander without engaging in a racial gerrymander, then it doesn't get to do the racial gerrymander. That should be simple. But the Court has elevated the already dubious position that the state is permitted to engage in partisan gerrymandering, or the (somewhat less dubious) position that the state is permitted to provide for capital punishment, and converted these practices into constitutional entitlements. That's not reflective of law; that's reflective of the Court's fanatical dedication to these sorts of policies compelling it to erase the law.