Who's Talking About Including Political Diversity on Campus?

Many people hate DEI (no news there). Many of those same people also are emphatic that universities must do more to prioritize intellectual and political diversity on campus. And in the overlapping diagram, it is taken for granted that the DEI apparatus is apathetic if not antagonistic to the project of promoting political diversity. It's not even something argued for; it is a presupposition that forms part of the foundation explaining why DEI is unjust.

And yet, in my experience, the academic site where one is most likely to see discussion about and concern over political diversity is ... in the DEI space.

We had our first faculty meeting of the year yesterday, which included the various faculty committees getting our formal charges. I'm chairing the law school's DEI committee (we're still allowed to have one, I guess). One thing last year's committee did was commission a "campus climate" survey, and the questions (on feelings of inclusion, prevalence of harassment, etc.) included ones keyed to political differences. The questions regarding how to facilitate a campus environment that's inclusive political diversity emanated primarily out of the DEI committee.

That's not because the rest of the faculty is apathetic to the issue. Rather, most issues in academia -- including important issues, including issues which predominantly occupy the public's attention when they deign to think about academia -- don't get thought of that much by most professors, most of the time, for the simple reason that we only have so much time and there is a lot to think about. So we delegate and we divide labor, and the result is that many important issues are reliant on being "picked up" by a specified office or committee within an academic space. And in my experience, the space that "picks up" the issue of intellectual diversity in general and potential feelings of alienation experience by political minorities in particular are the DEI offices and officers -- a role that is entirely overlooked given the near-universally believed dogma that DEI officers are implacably opposed to intellectual diversity in general and conservatives in particular. 

We saw a version of this in the fallout of the Kyle Duncan incident at Stanford, where DEI Dean Tirien Steinbach took the fall for how she managed student protests at a Federalist Society event. Almost entirely occluded in the hatefest Steinbach endured as a supposed ideological commissar of DEI wokeness was the fact that the Federalist Society had identify Steinbach as one of its few allies on campus; a figure who stood out precisely because she was invested in ensuring that FedSoc could participate fully and equally in campus life. It is hard to imagine a clear illustration of this paradox -- the assumption that DEI is the enemy of political diversity and inclusivity; the reality that the DEI official was one of the most active proponents of political diversity and inclusivity -- than this.

Now, to be sure, the political form of "inclusion" isn't straightforward -- and in particular, it doesn't map on especially well to how we think about "inclusion" vis-a-vis ascriptive identities like race or religion. Ascriptive identities are not typically thought of as being appropriately subjected to normative criticism. A place where significant members of the population took positions of the form "I think it is illegitimate/immoral/wrong/incorrect to be Black" would be failing to be inclusive of racial difference in an obvious way. I imagine virtually all would think the same regarding religion ("It's wrong to be Jewish"); I'd say the same thing about sexual and gender identity (though here of course many conservatives would disagree, and very much want to defend the legitimacy of those who assert "it is wrong to be gay or trans").

By contrast, ideological orientations are defined by content that by definition is properly the subject of ongoing normative contestation. To be conservative (or liberal, or Marxist, or MAGA) is to endorse a cluster of normative positions which others will inevitably judge as right or wrong, correct or incorrect, or legitimate or illegitimate. A university could not function at the most basic level if members are not allowed to make those judgments (what would it even mean to say that the law school's mission is thwarted when its members make normative appraisals of ideological positions?). Unlike "I think it is wrong to be Jewish", statements of the form "I think it is wrong to oppose gay marriage" or "I think it is wrong to abolish qualified immunity" cannot be viewed as inherently problematic in a university space -- those are exactly the sorts of statements we expect to see, and there is no intrinsic foul just because one's peers think you've taken the wrong side of an ideological controversy.

This doesn't mean there isn't any space to consider how persons who take ideologically dissident positions in a given space can or should be "included". One thing we can (and I think should) say is that healthy respect for intellectual pluralism means we should be tolerant of a wide range of positions on publicly contested issues, even those we disagree with, and generally relate to such positions via the "normal" processes of respectful dialogue, debate, and consideration. Some think we shouldn't abolish qualified immunity, others we should, but even if "abolish qualified immunity" is the consensus position on campus, we should still be willing to think about the issue critically and debate it in a manner that respects the divergent views. Cultivating that sort of respect for ideological plurality seems very healthy, and hopefully can alleviate some feelings of exclusion conservative students might face. But notice that this isn't how I think we envision what "inclusion" looks like for ascriptive identities -- I do not think our goal with respect to antisemitism should be "some people think Jews are okay, and some don't, but the important thing is that we make sure that persons with all range of views on 'are Jews okay' are able to openly debate and discuss the issue." The sorts of interventions that make sense along the axis of ideological orientation are ill-equipped to address racial or religious (or, I think, sex/gender) identity.

So the issue is not straightforward, and the people who act like it is are selling you a bill of goods. The issue of inclusivity towards political diversity on campus is a complex one and one that requires serious thought. But overwhelmingly, the people who are thinking about it in a serious and systematic way -- not as rabble-rousers, not as part of a bad-faith gotcha game trying to sabotage the university -- are found in DEI offices. And I wish they got more credit for the hard work they're putting in.

Law vs. Antisemitism vs. McCarthyites

In the spring of 2023, I co-convened and hosted the second annual "Law vs. Antisemitism" conference at Lewis & Clark Law School. It, and the ensuing symposium issue published by the Lewis & Clark Law Review, was one of my proudest professional accomplishments.

As I was organizing the conference and soliciting participants, I had one absolute bedrock rule I swore I would not break: nobody but the organizers, using our best professional judgment, could tell us who would speak at, sponsor, or otherwise participate in the conference.

One reason for that rule was that one of our sponsors was the ADL (and Steven Freeman of the ADL one of our two keynote speakers, alongside Eric Ward). Even in 2023, there was an active campaign in some circles to "drop the ADL" and to refuse participation in events the ADL co-sponsored. My position on that was that nobody could tell us who our sponsors would be. And the corollary position was that none of our sponsors could tell us who our participants would be. End of story.

For the most part, this firm redline I drew was an entirely moot point. None of our sponsors (including the ADL and the Academic Engagement Network, which I was then a member of) expressed any interest in dictating who could participate. And none of our participants raised any questions about who was sponsoring us. We did get a few emails from outsiders who asked rather motivated questions about whether representatives from this or that hobbyhorse cause would or would not be participating. My answer to those emails was straightforward: any such group was welcome to submit a proposal, and they would be assessed on the same basis as any other potential speaker (though as I recall all of these messages came after the proposal deadline had closed anyway). With a single exception (which I'll discuss in a second), nobody involved in the conference sought or received any alteration of any aspect of the conference's program based on ideological objections to a co-participant. The result was an extraordinarily vibrant and successful conference where speakers from diverse perspectives and ideological backgrounds got to converse and learn from one another. It was a great experience.

I have not attended the subsequent Law vs. Antisemitism conferences. This year I'm on paternity leave, and last year I was frankly burnt out. But I still think it's a great conference and a great asset to the community.

So I was frankly furious to read what can only be described as a hit piece in the Jewish Insider targeting this year's conference, titled "ADL, AEN sponsor UCLA antisemitism conference that featured speakers tied to anti-Zionist groups." The article is clearly written with a scandalized tone -- how could these respectable organizations permit such scoundrels in a room they sponsored! -- and it has already yielded results: both the AEN and ADL have promised to withhold future participation and support for the conference unless they are given veto power to "exclude" speakers they disagree with.

No academic conference with any integrity could accede to such a demand. If the ADL pulls out of the conference going forward, it will have only made a decision to "drop" itself. And on the merits, there simply is no basis to object here. What the ADL and AEN are asking for is fundamentally incompatible with the Law vs. Antisemitism conference project.

To begin: while the nature of the topic means we've always drawn more deeply from the "practitioner" space than many of our peers, the LvA conference is first and foremost an academic conference. It is not a pep rally, it is not a cheerleading initiative, it is not a "safe space", and it is not a therapy session. There are and should be diverse views present; we were not selecting for an ideological line, and we do not promise that anyone's ideological orthodoxies won't be challenged. 

This resulted in a range of left-to-right views represented amongst conference participants, which is how it should be. For example, when the Lewis & Clark Law Review was selecting papers to be published in the accompanying symposium issue (we had more submissions than space), I advocated that Ken Marcus' IHRA paper be included -- not because I agreed with it (I didn't), but because it represented a perspective that I knew was important and relevant to a live debate. I don't agree with his take on IHRA, but I'm not going to pretend like it isn't a live perspective that deliberators on the subject of antisemitism need to grapple with. Again, that's how things should be -- and while there that intervention was to the benefit of a conservative voice, like it or not, anti-Zionist views on antisemitism are also important and relevant to a live debate and deserve their space in academic conferences (whether I agree with them or not). They don't get to monopolize the space; but they can't be artificially excluded either. Pretending this debate doesn't exist and wishing it away doesn't do anyone any favors.

As alluded to above, there was one sop we made to ideological demands at the Lewis & Clark conference -- one of our conservative speakers said he would not be on a panel with a certain progressive speaker. This condition was agreed to by one of my co-organizers without my knowledge or consent; and when I found out I was furious -- partially because on principle I didn't believe our speakers should be able to dictate our panel setups, and partially because I wanted ideologically diverse panels and demands like this interfered with that project. This conservative should have been forced to grapple with the challenges posed by a progressive critic; and vice versa -- that's what makes conferences like this valuable.

That experience makes me take particular note of those persons who walked out or announced future non-participation because there were panels they deemed "one-sided" or otherwise included speakers they said "crossed the red line". The problem here is obvious: one cannot simultaneously have a no-platform rule where one refuses to be in a room with anti-Zionists and then complain about one-sided panels! And if we zoom out on the subject of "one-sidedness", the article identifies a total of three "problematic" speakers. I don't know how many speakers there were at this conference overall, but at mine there were around thirty-five. Three of thirty-five does not suggest a conference that was on the whole one-sided or ideologically stacked (or if it was, it's stacked in a Zionist direction). The article suggests that the anti-Zionists were given special highlighting or feting. They were not. They were part of a larger event and they got to speak their piece on the same terms and in the same environment as everyone else.

What we're seeing here, rather, is certain speakers who refuse to tolerate being in a space that is not univocally Zionist -- and then, upon their departure, complain that the space is ideologically biased. This is a self-fulfilling prophecy. One suspects the departure will yield a wider academic boycott of the conference from the political right, which will push the conference's center of gravity further to the left, which the conservatives will then use to claim vindication regarding their decision not to participate. But let's be clear: they were welcome. They were present. Their ideological compatriots were in the overwhelming majority of participants. They left not because they were pushed out, but because they demanded an ideological litmus test and the conference would not indulge them -- any more than we would or will indulge similar no-platform demands seeking to impose an anti-Zionist ideological uniformity.

The point of articles like this are to facilitate ideological censorship and a narrowing of academic exchange. If you have a problem with conferences that maintain an ideological anti-Zionist litmus test; then you can't endorse conferences maintaining an ideological pro-Zionist litmus test. And likewise, the attempt to present the presence of a handful of anti-Zionist speakers as corrupting the entirety of the conference is just as problematic as an attempt to present the presence of a handful of Zionist speakers as corrupting the entirety of a conference. In all cases, the target is the very project of open and free academic exchange.

In any situation like this, where an event features both JVP-type folk and ADL-type folk, it is a fifty/fifty shot whether the former will threaten to boycott unless the latter are excluded, or the latter will threaten to boycott unless the former are excluded. Here, it was the second; sometimes it will go the other way. I'm always stunned that the people who make these ultimatums don't recognize that they always come off a whiny, censorial bullies; but it doesn't seem to stop anyone. Nonetheless -- the ADL and AEN come off as whiny, censorial bullies here, and that's through no fault of anyone but themselves. Again, one doesn't need a campaign to "drop the ADL" if they're just going to end up dropping themselves.

I have no doubt that all the speakers who were selected to present at this conference were picked because they provided an interesting perspective that would deepen the academic conversation on the subject of antisemitism. They were not picked because the organizers "agreed" with everything they have said or would say. It is not a vice but a virtue that these perspectives will not all be agreed to by all; an academic conference that is deliberately trying to create an ideological monoculture is a conference that should be run by someone else.

Coincidentally, I was on a panel at a different conference a few weeks ago with one of the "problem" speakers at the LvA, University of Toronto professor Mohammed Fadel. The subject was campus free speech issues related to Israel/Palestine, and we disagreed on a lot -- sometimes sharply. But it was a productive and pleasant conversation, and that's how these things should be. 

Also coincidentally, a few days ago I formally resigned my membership in the AEN. It had been dormant for some time, but in the wake of Trump's all-out assault on academia and academic freedom, I lacked confidence that AEN would stand up for the principles of academic engagement that attracted me to it in the first place. Replying to my message, the AEN's leader expressed her disappointment and reminded me of the AEN's sponsorship of the LvA conference. That just a few days later they announced they would drop that sponsorship because the conference refused to impose a rule of intellectual orthodoxy only confirms my decision was the right one.

Don't Accommodate Conspiracists

The other day, Yair Rosenberg flagged a bill introduced by Republican Rep. Thomas Massie (R-KY, and almost certainly the most openly antisemitic member of Congress in office today), titled the "Dual Loyalty Disclosure Act," which would require all persons running for office to disclose what countries (other than the United States) they hold citizenship in. Nominally targeting dual citizens, the bill, Rosenberg observed, was clearly inspired by various "lists" circulating on neo-Nazi sites which allege that all Jewish members of Congress are dual citizens of (and thus dually-loyal to) Israel. To that, Rosenberg wrote, "Ironically, the bill would debunk one of the very conspiracy theories that inspired it" (since the disclosure list would reveal that no Jewish MoC has Israeli citizenship).

I meant no disrespect to Yair when I replied that the bill would not "debunk" the conspiracy at all. "[T]he nature of these conspiracies immunizes them from debunking." The truth is already out there, and has not accomplished anything -- so offering more "truth" isn't going to serve as remedy. Rather, I said "When you humor conspiracy theorists by suggesting they have 'legitimate' concerns, you only encourage them."

This is a lesson that generalizes. "Voter fraud", for instance, is an essentially non-existent problem in this country. Nonetheless, the Supreme Court endorsed the state's right to impose voter ID laws to tackle the perception of widespread voter fraud -- even though that perception was (by the Court's own admission) not remotely grounded in the objective record. The Court rationalized its decision as enabling the state to generate greater "confidence" in election results in the face of this widespread, albeit objectively false, sentiment that voter fraud was a serious problem.

This, to put it mildly, did not work. Humoring those who harbored lurid and outlandish beliefs about voter fraud did not cause them to develop greater "confidence" in the electoral system; it instead encouraged them to dig in deeper (culminating, of course, in Trump's attempted insurrection following the 2020 election). A second's worth of reflection could have predicted this would be so: their original fears weren't grounded in reality, so obviously a reality-based solution isn't going to assuage them. All it does it suggest they are on the right track. But whatever grievance or paranoia generated their conspiracy to begin with -- most likely "minorities are sometimes winning elections when I don't want them to" -- that isn't effected at all. You cannot indulge.

Or take vaccines. We've gotten, it seems, a column a week lecturing the medical profession that they must figure out ways to "reassure" "vaccine-hesitant" Americans who, while perhaps objectively misinformed, also have "legitimate concerns" that need to be addressed. Again, the notion that more robust studies or in-depth research could "assuage" "concerns" misapprehends how anti-vaccine sentiment works. RFK Jr. does not want to be "reassured" about vaccine safety, he wants to believe that vaccines are dangerous, and will actively resist efforts at appeasement that still end up concluding that vaccines are in fact, safe. The fact that vaccine safety is settled science means that science must be unsettled. That's no doubt why the new NIH head is so enthusiastic about promoting "dissent" -- not from the administration's new orthodoxies about transgender healthcare, of course, but about the utility of vaccination. It's certainly why RFK picked a serial fraudster to lead the new "studies" into the alleged links between vaccines and autism. When you accommodate the cranks, they get crankier.

"Media bias", same thing. And there's a branch of criticism of academia that, I think, falls into this category as well. Here, too, we are regularly regaled with lectures on how, while Trump's assault on academic freedom may be a step too far, universities did maybe bring it on themselves with their stifling group think and endorsement of wacky leftist priorities. I took a sinful amount of pleasure reading Tressie McMillan Cottom positively curb-stomp Bret Stephens as the latter tried to trot out his tired applause lines about the alleged woes of contemporary academia. Actually, there are plenty of robust debates inside our classrooms. Actually, humanities majors do fine in the job market. Actually, the "lowest-quality institutions" extant in academia today are not "Columbia" and "Berkeley", they're predatory for-profit institutions who plunged hundreds of thousands of Americans into crushing debt by falsely promising a "career-ready" education ("colleges not unlike the one that our current dear leader once ran as a purely economic enterprise.").

For academia, too, there are no reforms that are going to satisfy people prone to believe that the academia is compromised of "factories of Maoist cadres", because the actual state of academia bears no relation to their views on it. Accommodating their fantasies won't make them back off, it will just convince them they've been vindicated.

This doesn't mean that there are no steps university stakeholders should take to improve the robustness of discussion and debate on campus, ensure that campus communities of diverse backgrounds and viewpoints feel included and are treated equitably, and so on -- any more than urging that we dismiss anti-vaccine cranks means that we stop caring about medical quality control and safety testing. Rather, the point is we should do these things for ourselves, not for earning elusive and probably chimerical "credibility" from insatiable critics. Chasing their approval is a fool's errand.

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.

Georgetown Stands Up in the Face of the Trump Admin's Attempted Academic Boycott

A little while ago, the Interim United States Attorney for the District of Columbia, Ed Martin -- who has rapidly begun distinguishing himself as one of Trump's most odious foot soldiers -- sent a letter to Georgetown Law School demanding that they eliminate all "DEI" from their curriculum and threatening to refuse to hire Georgetown graduates until they do so (if "a little while ago" sounds vague, that's because it took Martin two attempts to send the letter -- he misaddressed it the first time).

Martin's threats are reminiscent of the announced boycott of Columbia grads by Judge James Ho and some of his fellow far-right travelers, and the Dean of Georgetown responded exactly how I wish the Dean of Columbia would have responded: by refusing to give in and also by naming exactly what is happening here: a threat of official government penalty against private institutions for refusing to kowtow to official ideological orthodoxy. This goes way beyond the "jawboning" or informal requests that caused conservatives to shriek their heads off during the Biden administration; we have in these cases an explicit promise of legal retaliation on private actors who don't toe the government's line. It is hard to imagine a clearer instance of de jure censorship than this, and Georgetown Dean Bill Treanor doesn't mince words:

As a Catholic and Jesuit institution, Georgetown University was founded on the principle that serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding. For us at Georgetown, this principle is a moral and educational imperative. It is a principle that defines our mission as a Catholic and Jesuit institution. Georgetown University also prohibits discrimination and harassment in its programs and activities and takes seriously its obligations to comply with all federal and local laws.

Your letter challenges Georgetown’s ability to define our mission as an educational institution. It inquires about Georgetown Law’s curriculum and classroom teaching, asks whether diversity, equity, and inclusion is part of the curriculum, and asserts that your office will not hire individuals from schools where you find the curriculum “unacceptable.” The First Amendment, however, guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.

This is a bedrock principle of constitutional law – recognized not only by the courts, but by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from “exercising control over the content of school curricula.” 

Your letter informs me that your office will deny our students and graduates government employment opportunities until you, as Interim United States Attorney for the District of Columbia, approve of our curriculum. Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.

Georgetown Law has one of the preeminent faculties in the country, fostering groundbreaking scholarship, educating students in a wide variety of perspectives, and thriving on the robust exchange of ideas. Georgetown Law faculty have educated world leaders, members of Congress, and Justice Department officials, from diverse backgrounds and perspectives. We pride ourselves on providing an excellent graduate and professional education, built upon the Catholic and Jesuit tradition. Georgetown-educated attorneys have, for decades, served this country capably and selflessly in offices such as yours, and we have confidence that tradition will continue. We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.

Very well said. The appeal to religious liberty is also appreciated in this context, though I suspect the Jesuits will fare as well as liberal Jews will under the new free exercise jurisprudence.

It should be clear by now that the Trump administration and its right-wing fellow travelers are launching a full-fledged BDS campaign against American universities that don't bow to its ideological agenda. The proposed academic boycott against Georgetown is one example, the myriad donor threats to divest their funding from colleges that don't crackdown on disfavored programs or speech is another, the proposal to sanction Columbia by axing over $50 million in contracts is yet another. These endeavors are an anathema to academic freedom and First Amendment values, and must be opposed by all principled defenders of the academy.*

* What a shame that the AAUP recently and abruptly shifted course and decided, after decades of strong opposition, that actually academic boycotts are a-okay. It's almost like it was eminently predictable that abandoning that principle might backfire very quickly given how the right has been racing for excuses to punish universities who they've deemed "complicit" in ideological projects and activities they oppose!

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.

Did You Hear? CUNY Branches Cancel Hillel Yom Ha'atzmaut Events

Two branches of the City University of New York system -- Kingsborough and Baruch -- have apparently canceled Israeli Independence Day events sponsored by local Hillel chapters, citing security risks. In the case of Baruch, administrators reportedly offered alternative venues to the Hillel chapter (which were declined), at Kingsborough, by contrast, the administration reportedly refused to make any arrangements to enable the event to go forward.

CUNY is a public university, so this raises the usual First Amendment problems. While every case is different, there are some clear overlaps between this case (in particular, the citation to "security" concerns) and the cancellation of pro-Palestinian speakers and events justified on similar logic (for example, at USC). This, of course, represents a golden opportunity for people to lob dueling hypocrisy charges at one another ("You were aghast when this happened at USC, but I don't hear you complaining now!" "Yeah, well you were apologizing for this when it happened at USC, but you're aghast now!"). I'm sure that will be a grand old time for everyone.

I do want to make one note on the relative coverage and penetration of this story compared to other free speech debacles related to Israel and Palestine on campus. I haven't seen this story covered outside of the Jewish press. That doesn't mean it won't be later, and I'm not generally a fan of the "...but you'll never see this reported in the mainstream media!" genre of commentary. In part, that's because I think there's massive selection bias in what we claim is over- or under-covered; in part, it's because I think virtually everyone massively overestimates how many stories break through to mass public consciousness at all. In reality, I think different stories gain traction in different media domains, such that a story which might tear through one sort of social or ideological circle might make barely a ripple in another.

That said, in many of the circles I reside in, there is essentially no knowledge that there are any cases of academic censorship of "pro-Israel" voices on campus at all. To be clear, I'm not saying that there are not numerous cases of academic freedom violations targeting pro-Palestinian speakers -- there are a slew of them. But the notion that this is a Palestine exception to academic freedom, rather than something which unfortunately happens in a host of other cases and contexts (including, in the right-slash-wrong environments, to pro-Israel speakers), speaks less to the reality of academic freedom and more to an epistemology of which cases get attention and which don't. There are many academics for whom the Steven Salaitas are known, while the Melissa Landas are not. In other domains and registers, there are different gaps.

Ultimately, it's a variant on "they would say it about Jews, they'd say it about other groups too." The claims of injustice are not wrong, but the claims of uniqueness very often are. How many times have we heard variations on "can you imagine if there was a mob of people harassing and making racist remarks towards any other minority group -- how would universities respond to that?" (As we saw at UCLA, the answer apparently is "they'd sit back and let said mob kick the crap out of their targets"). And at the same time, we've also heard plenty of iterations of "if a university dared cancel a pro-Israel event, it'd be on the front-page of every newspaper for the next month" (so far, no headlines).

So I'll all say is that, if you're of the bent that there's no meaningful suppression of pro-Israel speech in campus environments, and your informational ecosystem (other than me, I guess) didn't alert you to this cancellation at CUNY, you should consider how the former belief might be correlated with the latter lacuna. Other people might have different gaps, and they should contemplate what generates them as well.

Steinbach's Revenge

My next law review article is on academic speech issues and the regulation of campus protest. You know, taking a break from the fraught topic of antisemitism and shifting over to something placid and uncontroversial. The article was accepted for publication in March, but I did ask my editors if I could make some revisions before we started the editing process due to, er, recent developments (they've been very supportive).

The framing device for my article was the student protests of a talk by Fifth Circuit Judge Kyle Duncan at Stanford Law last year (remember that?). Much of the attention surrounding that incident focused on the behavior of the Stanford administrator on-site, Tirien Steinbach. Steinbach was widely pilloried for her performance, which critics said was insufficiently protective of Judge Duncan's free speech rights and too accommodating towards the protesters. My view was that Dean Steinbach was being unfairly maligned -- she actually did a decent (not perfect, but who is?) job and that people were underestimating the difficult position she was in and the tough cross-cutting pressures that make superficially "easy" free speech issues hard.

I wonder if Steinbach is laughing, just a bit, right now.

A particular claim one saw coming out of the Stanford incident was that the disruptive behavior of the students was attributable to past and present failures by the Stanford administration to respond to illicit protest with a stern hand. Administrative indulgence was akin to tacit support, which emboldened the students to behave even more brazenly later on, and so the cycle went. If the university stopped mollycoddling and just crushed policy-violating protests with an iron fist, the argument went, then they'd send a message to the students that such activities were not okay, successfully deter future disruptions, and restore calm and campus order. Dean Steinbach's relatively conciliatory approach towards the Duncan protest was easily slotted into a villainous role under this narrative: it was a symbol of the limp and weak-willed administrative cowering that was ultimately responsible for "bad" protests.

When one looks at what is happening on campuses today, it's hard not to feel like that argument has been pretty decisively falsified. The current wave of protests and encampments really can be traced back to Columbia, and in particular Columbia President Minouche Shafik's decision to essentially immediately respond to largely peaceful encampments on her campus with a hyper-aggressive police intervention. The result, it turns out, was not that the students were duly chastened and slunk back to their dorms; the result was a cascading series of escalations and counter-escalations at Columbia and the emergence of copycat solidarity protest encampments at universities across the country. Even if one did believe that Shafik had the formal "right" to enact her decisions, it's hard for me to imagine that anyone can call these policies success stories, regardless of whether your metric is protecting free speech, preserving campus order, defending Jewish students, or anything else.

So with the benefit of now getting to see the road-not-taken, maybe Steinbach's choice to take a more conciliatory, non-confrontational approach toward the disruption at Stanford and not immediately resort to "am I formally allowed to call in the police to drag people away" didn't emanate from some personal disdain for freedom of speech. Maybe she was actually a professional who knew what she was doing.  Maybe there are lessons we can learn from her. Maybe the prevailing administrative value in responding to protests should not be reflexive insistence on asserting yourself as the boss.

There's very little for anyone to feel good about regarding what's happening on campus right now (I share Robert Farley's worry that we're rapidly constructing a social framing where "no one can be serious about protesting the war (or countering protests of the war) unless windows are broken and billy clubs bared"), but if anyone deserves to feel the slightest bit of schadenfreudean satisfaction, its Tirien Steinbach.

Campus Antisemitism Monitors Will Fail in Extraordinarily Predictable Fashion

Trying to capitalize on the latest headlines, a bipartisan group of legislators is seeking to create government "antisemitism monitors" that will be dispatched to colleges and universities across the country. Fail to meet their scrutiny, and colleges could lose gobs of federal funding.

If enacted, this policy will fail in spectacular fashion. How do I know? Because we have a template in state anti-BDS laws, which backfire in similarly predictable ways. The problem is that while it's conceptually possible to craft valid and legitimate anti-BDS legislation, in practice the laws will be enforced by some mixture of apathetic mid-level bureaucrats, terrified associate deans, and hotshot headline-chasing politicians. Put that cocktail together, and the result is such lovely headlines like "homeless hurricane victims can't get disaster relief until they sign anti-BDS pledge."

Indeed, if the antisemitism monitors do come into play, I can predict exactly the scenario that will go down shortly thereafter at Any College, USA.

1. A student group invites some Palestinian poet to give a talk;
2. Canary Mission or similar digs through the poet's instagram and finds a post where they say something that many people might find troublesome: "from the river to the sea" or "the Zionist state will be dismantled" or something of that ilk.
3. They shriek that this is a violation of IHRA and federal law and the university risks losing all its federal funding unless it acts.
4. Some associate dean for student affairs panics and cancels the talk.
5. There's a massive backlash from the students (possibly including protests) as well as various academic freedom/civil liberties watchdogs who call the cancellation out as censorial bullshit.
6. Pro-Israel/Jewish groups make surprised-Pikachu face at how they once again somehow became the poster child for heavy-handed campus censorship. Who could have predicted? (Answer: Everyone. Everyone could have predicted).

And for all the grousing about "only the Jews don't get ..." X Y or Z protections on campus, it's worth noting that no other campus minority currently has a monitoring program like this. A good rule of thumb for whether one is advisable here is if one also would support a similarly empowered and emboldened "anti-racism" or "anti-Islamophobia" monitoring program. If your answer is something along the lines of "while racism and Islamophobia are serious problems, I don't trust the implementation and I'm worried about the possibility of abuse and/or chilling free speech" -- congratulations! You've identified the exact reasons why such a program is inadvisable for antisemitism as well.

Assorted Thoughts on the Chemerinsky Incident

If you're in my neck of the internet woods, you've no doubt heard about the incident in Berkeley where a small group of students conducted a pro-Palestinian protest in the backyard of the Dean Erwin Chemerinsky's house. 

To make a long story short, Dean Chemerinsky had invited the 3L class over to his home to celebrate their impending graduation (he normally invites the 1L class at the start of their law school journey, but since this crop of graduating students spent their 1L year mid-pandemic and so wasn't able to come, he invited them before graduation instead). The local SJP chapter issued a demand that Chemerinsky cancel the dinner, distributing a poster showing a caricatured image of the Dean with a bloody knife and fork over the message "No dinner with Zionist Chem while Gaza starves." Chemerinsky refused to cancel the dinner; so some of the students RSVP'd and, once they arrived at his home and were welcomed into his backyard, stood up with a microphone and began delivering a speech about Gaza. Chemerinsky and his wife (Prof. Catherine Fisk) asked that they stop and leave, as guests in their home; the student with the microphone initially declined, asserting she had a "First Amendment right" to engage in her conduct. At one point, Prof. Fisk placed her hand over the shoulder of the student to try and take her microphone away (the student has characterized this as an assault -- even going so far to imply it was a sexual assault -- and has indicated she wants to file legal action against the law school). Eventually the students left, the Dean released a statement, and the internet was set ablaze.

From my vantage point, the students' behavior was abhorrent and very possibly a violation of the university's code of conduct (and the notion that they are the victims here is farcical). Beyond that bottom line, my emotional reaction to this story has been stronger than I might have anticipated, and it's worth talking through why. I do have a Berkeley connection, and though I've never met Chemerinsky personally, his reputation for both kindness and brilliance is unrivaled in the academy. I also have former students currently at Berkeley Law, and while I cannot imagine they participated in this fiasco, I would be disappointed and crushed if I found out otherwise.

On a more personal level, I suspect my views on Israel are quite similar to Chemerinsky (two-stater, sharply anti-Bibi but pro-Israel existing), and I also have been known to host students at my house for dinner (typically my small-group seminar students at the end of the semester). I view the dinners as a nice way to cultivate an environment of care and welcoming in the often-impersonal environs of the law school, and as a way of paying forward the sort of collegiate community I was lucky enough to enjoy as an undergraduate to another generation of students. If that gesture of welcoming students into my home were to be exploited in a manner akin to what the students did here, I'd be devastated. Protests like this are exploitations of trust, they rely on and take advantage of the host's unguarded openness and welcoming. We're not screening people based on ideology, we're not making people fill out political questionnaires, we just -- welcome students into our homes, without reservation. To take advantage of that, to extract costs on that openness, invariably leads to more closedness, more guardedness, and more cloisteredness -- a loss for everyone, and one that can and should be mourned (I saw someone argue on social media that if the Dean didn't want to be protested in his own backyard, he shouldn't have invited these students in the first place and instead tried to screen out whichever students he thought might be likely to protest him. That to me bespeaks an almost impossibly short-sighted and narrow attitude that is utterly toxic to the sort of university community anybody should want to cultivate).

Meanwhile, there's the question of "why was Chemerinsky picked for this protest?" That question has two related dimensions: why Chemerinsky, and why this protest (since virtually everyone seems to think that something as extreme as protesting in your host's own household should be reserved only for the most malign and irredeemable actors). Chemerinsky very much views himself as being targeted as a Jew, citing the bloody fork caricature and its resonance with the classically antisemitic blood libel. The immediate demand of the protesters is for Berkeley to divest from Israel; but the law school dean doesn't make investment/divestment decisions, so they're limply left arguing that Chemerinsky doesn't personally support divestment -- true, but a feature he shares with thousands of other members of the Berkeley community who also don't make investment decisions on behalf of the university. He also has beliefs on Israel that, while anathemas to the SJP crowd insofar as he rejects Israel being wiped off the map, are by no means some sort of Israeli maximalist/anti-Palestinian eliminationism and are entirely mainstream amongst both liberals and Jews (and are again widely present in the Berkeley community and beyond). Again, even if one opposes that stance, there is (or should be) a gap between "what we oppose" and "what we deem protest-worthy", and even among those who are protest-worthy, there is (or should be) differentiation as to when and where a protest is justified.

The most specific thing I've seen people point to in justification of "why Chemerinsky" is an editorial he wrote this past October -- just a few weeks after 10/7 -- recounting the antisemitism he's experienced as a Jew at Berkeley in the wake of the Hamas attack. The usual suspects make the usual claims in response: that Chemerinsky's claims about antisemitism are wrong, unfair, smears, conflations of anti-Zionism and antisemitism, and those sins justify what might otherwise seem an obviously abusive overreach of a protest. On that point, one thing I haven't seen commented on much is the deep and dangerous chilling effect this sort of position has (and is intended to have) on Jewish faculty speaking on the subject of antisemitism. I've written on this in the context of academic freedom, but there is a very significant contingent in American and global society who deeply believe that if you are a Jew and you speak on antisemitism in a way that they don't approve of, it is open season -- you have removed yourself from any and all protections (certainly norm-based, possibly law-based) one might enjoy in a liberal, tolerant society. Needless to say, as a Jew whose academic work centers in large part on antisemitism, this is a tremendously dangerous trend for me personally, and so of course I notice when it rears its head in such an explicit fashion.

Those are the more personal reflections I have. But there are a few more scattered issues I've seen that I might as well address here as well.

• One area where I think the internet breaks our brains is how it interferes with our sense of proportion -- literally, in terms of "how many people are doing/believe in this thing we're upset out, compared to how many don't." The protesters appeared to number about ten students. That's not negligible, but it's also a very small percentage of Berkeley Law's total enrollment. Online, the consensus view from what I'm seeing is pretty strongly that the protesters were out of line here -- and while my internet circles are of course not perfectly representative, my read has been that one has to go pretty far out towards the fringes and randos before one starts seeing folks defending what the students did. But the thing is, even if the breakdown is, say, 80/20 against the protesters, if I'm reading one hundred posts about this event, that means I'm reading twenty people announce they support it. That feels like a lot, even though objectively an 80/20 split is actually extremely lop-sided!

• The students' claim that her conduct was First Amendment protected is ludicrous save for the sheer moxie of lecturing Erwin Chemerinsky on First Amendment doctrine in his own house. One issue some people have flagged is this dinner being an "official" Berkeley Law event, and asking whether that changes thing insofar as Berkeley Law is of course bound by the First Amendment. But there's less here than meets the eye, because even if we view this as a "government" event, not all government events or property are public forums. Even on the Berkeley campus, areas like the administrative back offices or the classroom when classes are in session are not public forums (hence why a professor could remove a heckler from her classroom without it being a First Amendment violation even where that same speech would be protected from sanction on the campus quad). A professor's personal domicile is, if anything, a clearer case -- if public forum analysis applies at all, it is clearly a non-public forum and so the student's protest is not First Amendment protected once she is asked to leave.

• Many people have criticized the protest against Chemerinsky in terms of it being "counterproductive". Who is this supposed to persuade? Don't they realize the protesters are the ones who look bad here? Antisemitism discredits the cause! I understand where this sentiment comes from, but I think it is at least partially misguided. First of all, whether it's "counterproductive" depends on what it's trying to produce. If the immediate goal is sympathy from either Chemerinsky himself or even the public at large, maybe it's ineffective. But if the goal is just "make an enemy miserable", then it may be perfectly effective. Second, there are many theories of protest whose model of change does not depend on the protest immediately swaying popular opinion in their favor. Without overstating comparisons to disanalogous contemporary events, we should all at this point understand how a shocking breach of basic social rules and norms can, even where it's immediately the subject of revulsion, generate a series of events that may ultimately redound to the violator's benefit. Ultimately, while it may be that this protest is counterproductive (though again, that depends on what one is trying to produce), I think the immediate declaration of counterproductivity, insofar as it is paired with a more moralistic condemnation of this sort of protest, is a means of eliding a more worrisome possibility: what if morally-contemptible norms violations are in fact quite productive means for certain social groups to achieve their goals? I've said it before and I'll say it again: antisemitism is a productive ideology. It builds things, engenders alliances, and motivates action. And so opposition to antisemitism, or other norm-violative behaviors, must be willing to oppose such actions even when they're productive -- because they often are.

• Joe Patrice at Above the Law makes clear that he thinks this sort of protest is unjustified, but mentions in passing the "authoritarian" free speech position coming out of the right whereby it is a "free speech violation" if, say, a social media platform blocks or bans you. In many ways, the incident at Chemerinsky's house is the meatspace version of this: Chemerinsky is literally hosting, and a speaker is claiming a First Amendment entitlement to retain access to Chemerinsky's space in defiance of the wishes of the host. It's a bad First Amendment argument as applied to Twitter, and it's a worse First Amendment argument as applied to someone's backyard.

• I'm certainly not the first person to say this, but part of civil disobedience is accepting consequences. While it's true that a good protest will often be disruptive and a breach of the normal rules of operation, it's also the case that the reason a protest is disruptive and a breach is that it violates normal, enforceable rules. To engage in that sort of breach, but then to act scandalized that the relevant authorities treat it as a breach, is to have one's cake and eat it too. And so I get someone feeling strong enough about a particular issue to say "it's worth it to me to violate this rule and face these consequences." I do not get -- or at least don't respect -- someone simultaneously expecting plaudits for being so bold as to defy the rules and demanding exemption from having those rules enforced.

• Finally, I'm increasingly tired of the way these sorts of student protesters weaponize their status to act as if it's unreasonable to hold them to basic norms of conduct, or some sort of authoritarian imposition to subject them to consequences that can be wholly anticipated. It's true that, as we age, it's easy for professors to forget that young students are young and are still learning, and are going to make some foolish choices and say some foolish things because they haven't learned better yet. But it's also the case that as we age and our students seem ever-younger relative to us, we can also forget that the students are in fact adults and are perfectly capable of understanding how to behave as well as eminently-predictable consequences of their actions. I am not someone who thinks student discipline has to be overly punitive, and I respect that student conduct officials often find themselves in difficult spots. But unlike other recent Berkeley events, here we know who the perpetrators are; there does not seem to be much reason for why a conduct investigation shouldn't be opened here other than the administration either not wanting to or being scared to. Formal disciplinary responses are not always the first resort or the best resort, but they are a valid resort, particularly in cases where student behavior seems to be at least partially encouraged by a culture where the very idea of facing consequences for breaking rules is viewed as a form of oppression. There are people who basically immediately say student conduct violation related to speech warrants expulsion and anything short of expulsion tacitly assents to the violation. I don't agree with that, but I also don't agree with the view that every student conduct violation should be assessed solely as a "learning experience". Law and graduate students, in particular, are not smol, they are adults, and adults on the precipice of exercising significant political and social authority -- and part of entering into that latter role is accepting their status as responsible actors who can be held responsible.

Jewish Protests at Berkeley, a Follow Up and Victory Lap

UC-Berkeley Political Science professor Ron Hassner has ended his sleep-in protest, stating that the university administration has agreed to all of his requests. In particular he flagged the following:

(1) First, he asked that "all students, even the ones wearing Stars of David, should be free to pass through [Sather Gate] unobstructed. The right of protestors to express their views must be defended. It does not extend to blocking or threatening fellow students." The university has since "posted observers from the Division of Student Affairs to monitor bullying at the gate. These are not the passive yellow-vested security personnel who have stood around Sproul in prior weeks. The Student Affairs representatives are there to actively document bullying, abuse, blocking, or intrusion on personal space."

(2) The second request was for the Chancellor to "'uphold this university’s venerable free speech tradition' by inviting back any speaker whose talk has been interrupted or canceled. The chancellor did so gladly and confidently. The speaker who was attacked by a violent mob three weeks ago spoke to an even larger crowd this Monday."

(3) The third request was to fund and implement "mandatory Islamophobia and anti-Semitism training on campus". This has also apparently been arranged.

I give Ron a lot of credit. First, he's not dunking on the administration here, in fact, he gives them a lot of credit: "It is my belief that campus leaders would have fulfilled all these requests of their own accord even in the absence of my sleep-in.... At best, our sleep-in reinforced the university’s determination to act and accelerated the process somewhat."

Second, it's important to emphasize that Ron's protest did not ask or come close to asking that Berkeley silence anyone else's speech, including that of the protesters at Sather Gate. While they should not be able to obstruct Jewish students seeking to travel to campus, they have the right to present their views as well as anyone. It is not a concession but an acknowledgment of the proper role of the university administration that he did not press for them to end the protests outright.

Third, one might notice that Hassner's last demand was for antisemitism and Islamophobia training to be implemented on campus. In recent years, it has become almost cliched to hear certain putative anti-antisemitism warriors express fury whenever the fight against antisemitism is paired with the fight against Islamophobia, racism, or other forms of bigotry. They call it "All Lives Mattering" (although, when these coalitions against hate form and antisemitism isn't included in the collective, they call it "Jews Don't Count"). I've long thought that this was an abuse of the "All Lives Matter" concept, and it is notable that Hassner -- who not only has a ground-level perspective but who is actually putting his money where his mouth is in terms of combatting antisemitism -- doesn't see the pairing as a distraction or diminishment of what he's been fighting for but as an asset. More people could stand to take note.

Berkeley Has a Tough Task Ahead of It

I just finished a draft article (now before law reviews!) entitled "They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech." As the name implies, it addresses recent controversies regarding free speech on campus, though the framing device is the Kyle Duncan incident at Stanford Law which these days feels almost quaint. In any event, one of my main objectives in the paper is to explore the position of the university administrators -- often untenured -- who are tasked with enforcing free speech policies in the context of campus protests. They occupy difficult positions, not the least because many external observers think their position is easy -- just severely punish disruptive protesters and call it day. What could be simpler than that?

Of course, things aren't as simple as that, even in the seemingly clearest cases. Earlier this week, a group of protesters organized by the "Bears for Palestine" student organization managed to violently shut down a scheduled talk by a right-wing Israeli speaker at UC-Berkeley. Protesters smashed windows and the door of the building where the talk was scheduled to occur, and allegedly assaulted and slurred Jewish students trying to attend the event.

There's little question that this behavior violated UC-Berkeley policy and, probably, state law. The UC-Berkeley Chancellor, Carol Christ, has written a strong statement denouncing these actions. And for my part, as much as I respect the right of students to engage in protest, the allegations of what happened in this event are such that severe punishment -- including potentially suspensions or expulsions -- would seem to be warranted for at least the most serious offenders. To that extent, this is a simple case.

Even still, though, I do not envy the Student Affairs officials* who are tasked with operationalizing that simple case into actual disciplinary action.

To begin, it is abundantly clear that Berkeley is under immense pressure to significantly punish someone. If at the end of their process nobody gets more than a slap on the wrist for violations of this magnitude, they will be accused of turning a blind eye to this sort of behavior, or even tacitly sanctioning it. It needs, at the end of this, to put a few heads on pikes.

But to that end, while I suspect that Berkeley will be able to identify many of the students present at the protest, it likely will not be easy to figure who exactly is responsible for the more egregious acts that would justify the harshest punishment (the antisemitic slurs, the destruction of university property). Many protesters wore masks, and the group itself was comprised of students and non-students. 

So what is the university to do? It could adopt a policy wherein it just throws the book at everyone -- "expel 'em all and let God sort it out." But that sort of short-circuiting of normal due process protections will generate intense backlash and possibly make them vulnerable to a lawsuit. Breaking windows, smashing doors; these are violations of university speech policies. But -- depending on what went down at the event -- being in the vicinity of those actions, without participating in them, may not be. It's the difference between attending Trump's "Stop the Steal" rally versus actually breaching the Capitol. One might not think the former are good people, but they haven't done anything illegal.

In short, there are severe cross-cutting pressures at play here that make reaching even the "simple" right outcome harder than it appears. Those pressures are amplified by the very loud voices on both ends of the spectrum, some of whom will insist that nothing short of a complete extirpation of all pro-Palestinian advocacy on campus means capitulation, others of whom will fulminate that any consequence to any righteous protester on any ground is tantamount to jackbooted censorial thuggery. While we can perhaps justly demand that Student Affairs professionals ignore those voices (easier said than done), their presence, too, complicates significantly the more legitimate problems the office will face in its quest to come to a good decision.

* Disclosure: My wife works in the UC-Berkeley Student Affairs Division, albeit not in a role that has anything to do with meting out student discipline.

Free Speech Total War

In the wake of 303 Creative, I argued that one consequence of the Supreme Court's decision would be to supercharge "cancel culture". In a world where a business' decision to serve (or not) a customer is "free speech", then it must be the case that a customer's decision not to patronize a business (and to urge others to follow) is free speech in turn. Indeed, if we follow the metaphor along, "cancel culture" is exactly what the Supreme Court recommends as a remedy for Lorie Smith's homophobic speech, in lieu of enforcement of the anti-discrimination laws the Court struck down. "More speech, not enforced silence" indeed. And what more speech could we ask for than a concerted, express(ive) attempt to boycott her business, to send the message that these views are awful and intolerable and should wither on the vine of the "marketplace of ideas"?

In this way, 303 Creative really did greatly proliferate freedom of speech. But it isn't the freest speech we can imagine. In a Hobbesian sense, the freest free speech regime is one of pure anarchy: anyone can say anything, and anything anyone can persuade anyone else to do is fair game. Hobbes' freedom was the pure war of all against all, with no constraining rules or boundaries whatsoever. Every domain is a legitimate one to wage free speech war. Lorie Smith is wholly within her rights to advocate her views not just by writing a book, but by refusing to serve a customer, by firing an employee, by declining medical coverage -- you name it. And her opponents in turn can advocate their views by boycotting her business, picketing her house, urging her friends to ostracize her -- a war of all against all, with no zones of safety.

We could go further still. In a true free speech total war, if one "persuades" government to punish other speakers for their views, well, one just won a battle of free speech over those parties who oppose such measures (the dissident voices are, of course, free to shout their complaints as they're hauled off to jail, and the majority faction is in turn free to punish them further for their insolence). Nothing is off the table, everything is fair game, when it comes to ideological battles. Even if one can't quite follow me in seeing how express government punishment could be a form of extreme(!) free speech, the point is clear enough even if one takes everything but official de jure censorship off the table (as in the preceding paragraph). 

Of course, this doesn't look much like "free speech" as we typically understand it. Much of the impetus of what is sometimes called "free speech culture" is to remove, less certain topics from discussion, but certain domains from encroachment in ideological battles. Ideological fights should be fought in the arenas of ideology, they should not normally spill over into who one employs (in positions that are not themselves expressly ideological) or who one is friends with or what businesses one patronizes. Even recognizing the pressure that can be placed on "normally" (or "expressly ideological"), the point is generally reasonable enough. 

Consider a world where 303 Creative came out the other way. Someone with Lorie Smith's views continues to hold those views, in private, but as a business owner she dutifully follows the law and serves all her customers as equals. If someone pulled out her private beliefs (shared on Facebook, perhaps), and said "don't patronize this homophobic website designer", that would by many be viewed as a more "standard" case of problematic cancel culture. We might say in that circumstance that taking one's ideological opposition to Smith's views -- however justified -- and bootstrapping them onto whether to hire her as a web designer moves the ideological contest into a problematic domain. To be sure, I can absolutely understand the counterargument: that to give a homophobe money is to "normalize" her, to say her views are "okay", and it is entirely proper not to cooperate in that normalization. And it's not hard to think of cases at the margins where that counterargument may well carry the day. But if it always does, if there is no space between "view I disagree with" and "view whose adherents must be attacked along every possible front," that to me is a very unpleasant place to live in. As I wrote in my 303 Creative post:

One of the virtues of public accommodations law is that it dissipates, under normal circumstances, the inference that basic business transactions are expressive. I very much prefer a world where the bakery that bakes a cupcake for a client isn't seen as sending some sort of message of approval towards the client and the client that eats the baker's treat isn't sending a message of approval toward the baker (beyond "this cupcake is delicious"). That, to me, seems a far more pleasant space to live in than one where every turnip and widget we buy or sell can be taken as some sort of sweeping moral approval for our business partners.

Long story short: Yes, it's true that one can gain ideological victories by not limiting ideological contests to ideological arenas -- attacking them in their profession, their hobbies, their personal life, at every angle. But that world is a very nasty world to live in. Even if we think we might have to do that some of the time, it's very bad if we feel forced to do it all of the time. When social forces move us toward that world -- a free speech total war -- they are moving us towards a deeply toxic and oppressive social milieu.

All of this is lead in to Osita Nwanevu's column this week which, to some extent, endorses "free speech total war" position when it comes to the Israeli/Palestinian conflict and in particular campus discourse thereto. In contrast to the normal "free speech" position which suggests that we should protect advocacy of all sorts of views on Israel/Palestine, across the ideological spectrum, Nwanevu pivots sharply in the opposite direction: Progressives shouldn't stop trying to censor "bad" speech on campus, and should accept in turn that they will sometimes themselves be censored. "Students, academics, administrators, and outside influencers with different views will naturally clash and compete. In the end, some institutions will wind up more progressive or more conservative, [and] some institutions will be more or less tolerant of criticisms of Israel." Both "sides" should be free to wage ideological war on the other, and let the chips fall where they may. 

The more workaday "free speech" position on this issue, the one Nwanevu is contesting, holds something like the following: (1) campus administrators should not punish or obstruct university speakers on the basis of their views, no matter how repellant (the prohibition on de jure censorship); and (2) non-administrative actors should largely limit the domains in which they oppose speech they disagree with to appropriate ideological channels (the norm against "cancel culture"). The former lays out, e.g., why one shouldn't prohibit a "bad" speaker from giving a talk on campus. The latter explains why its problematic to, e.g., refuse to hire an undergraduate for a summer internship because one didn't like their column in the campus newspaper.

Both prongs of this position have come under tremendous strain over the past few months(/years). The first position has come under regular fire from various campus actors who demand that bad speech be formally punished -- in the cases of the Milos, the Ben Shapiros, and what have you, but more recently and ironically against the SJP-types. The second position has been said to be under siege by proponents of "cancel culture" who don't just disagree with X Y Z views but insist that their proponents must be fired from their jobs, ousted from campus clubs, and be viciously ostracized online; and likewise is remanifesting when pro-Palestinian students see their employment offers revoked and their likeness plastered on placards declaring them antisemites d'jour.

A popular argument here is that this is the chickens coming home to roost: leftists loudly decried both traditional free speech and free speech culture, and are now reaping what they sowed. Nwanevu takes aim at this account, however:

It is not at all obvious, actually, that defenses of Palestinian resistance, particularly armed resistance, and criticisms of Israel⁠—which has long been neigh-untouchable in mainstream political discourse—would have been more well-tolerated in a world where the campus controversies of the last decade hadn’t happened. We likely would have seen the very same pressure to support Israel after Hamas’s attack; as such, the speech climate likely would have been just as stultifying.

To believe otherwise is to invest fully in an odd precedential logic that regularly leads minds astray in these debates—those who use and abuse power are not always groping around for actions in the past that might justify their actions in the present. Reality is not a judiciary. And believing otherwise gives agency and responsibility over to whataboutism. Israel’s defenders and the right point to campus progressives, progressives might rightly say that conservatives and reactionaries suppressed left-wingers on campus first during the Cold War, defenders of Cold War conservatives might allude to the Soviets and the gulag, defenders of the Soviets might reference the repression of left-wing activists and thinkers by reactionary governments, and on and on backward in time to some creature of the caves who first realized that a club to the head was a reliable way to end arguments.

There is both more and less to this argument than it appears. On the one hand, I think Nwanevu is clearly right that the "precedential" bulwark against censorship would always be one whose robustness would be limited. "Reality is not a judiciary" indeed, there are always counter-precedents to point to, and everything we know about free speech suggests that there are far more fair-weather friends who are perfectly happy to demand freedom for me and censorship for thee than there are truly committed free speech ideologues who may, regrettably, falter in their commitments due to their opponents' hypocrisy. I agree that no matter how fastidious campus leftists may have been regarding free speech in 2022, it would not have stopped some people calling for the censorship of certain pro-Palestinian views in 2023.

That said, I also think Nwanevu is understating the degree to which the progressive development of free speech institutions is serving as a genuine bulwark against more censorial impulses, even now. Much as I think the levels of antisemitism on campus are overstated by alarmists even as they are no doubt real; it also must be said that the degree of censorship directed towards pro-Palestinian advocacy is simultaneously real and overstated by alarmists as well. Everything is a matter of margins: the question isn't whether commitments to free speech would eliminate all calls for censorship (or even successful instances of censorship), it's whether they are comparatively better at providing protection than alternatives.

In that vein: it is frankly absurd to contend that "criticism of Israel" is or has been "well-neigh untouchable" in campus politics. Take your average academic open letter savaging Israel signed by 1000 university professors, and 99.98% of them will not experience any tangible administrative blowback whatsoever. There's a ton of pro-Palestinian speech that does not and should not get any no pushback at all, and that's largely attributable to free speech commitments working.

Even looking at the list of exceptions proves the rule. Students for Justice in Palestine got targeted after it called the October 7 massacre a "historic win" that would augur a righteous campaign whereby Jews would be ethnically cleansed from Israel (yes, they did). Norman Finkelstein was denied tenure after writing a book titled "The Holocaust Industry". One can (like me) think that views like these are nonetheless protected while also zeroing in on exactly what is triggering the censorship -- not "pro-Palestinian speech" generally, but whooping and cheering a mass rape campaign specifically, or stating that Holocaust remembrance was an industry Jews exploit for profit, specifically. If that speech is coterminous with "pro-Palestinian" speech, that's a far more searing indictment of the field than I could give. And the notion that a more stultifying free speech environment than what we're seeing now is impossible to imagine -- well, I don't think it takes much in the way of imagination at all.

All that said, Nwanevu deserves credit for being willing to pay the piper. In the free speech total war "clash" between various stakeholders, sometimes, progressives will lose, not just in the realm of ideas, but lose quite tangibly -- their jobs, their social positions, their livelihoods. If one wants to extract those costs on others, one has to accept them for oneself.

Taking the freedom of institutions seriously in this way is not without costs for progressives. Bill Ackman and the captains of Wall Street do, in this framework, have the right to bar pro-Palestinian activists from employment at Scrooge McDuck Capital. The purges we’re seeing now are not incompatible with sound liberal principles—advocates for the Palestinian cause will not find refuge in them or in a fuzzy speech maximalism defined and defended inconsistently by most of its own proponents.

[....] 

The only recourse is politics—the sturdiest argument against the repression of those speaking for Palestine isn’t that institutions and the billionaires and propagandists pressuring them don’t have the right to try suppressing Israel’s critics but that the Palestinian cause is substantively just, and Israel’s defenders are backing a senseless and immoral war, a stance more and more Americans are coming to agree with.

The "Scrooge McDuck" shot is a bit cowardly -- not because Ackman deserves any special deference, but because right after admitting that it's fine for pro-Palestinian activists to be subjected to the full blast of modern cancel culture it then slyly suggests that the only actual "costs" they might face are withdrawal of opportunities a good cadre member shouldn't desire anyway. The reality is far worse: the costs we're talking about aren't just loss of a chance to engage in rapacious vulture capitalism; they extend to every nook and cranny of the good life, every hobby and professional ambition a young person might have. That's what's on the table here -- for everyone, on both sides. The whole point is that Bill Ackman and SJP are equally entitled to pursue their ideological agenda by any means necessary.  The end game, so bloodlessly described as "some institutions will wind up more progressive or more conservative", is better described as "ideological dissidents will be ruthlessly hounded out of their places of study, of worship, of employment, and of respite" -- dozens of the most caricatured version of Oberlin College being paired with countless New Colleges of Florida. Maybe we might think that, once the dust settles, everyone will be happier sorted into their neat ideological bubbles. But the transitional costs of successfully cleansing out the minorities will be monstrous -- a Tiebout sorting of the most vicious kind. And that really should be an intimidating proposition.

Why does Nwanevu nonetheless endorse going down that road? One possibility is that he doesn't truly believe the war will be as total as he's letting on. But another possibility is that he thinks that, when the dust settles, his side will win. The momentum is on their side. As many of "his" people will have their lives ruined by pro-Israel cancellation, he believes pro-Palestinian cancellation will be able to ruin even more. Is he right? I'm not as sure as he is about who would end up prevailing in a true free speech total war. But I do know that the casualty count will be staggering.

Like in real war, the constraints on free speech total war are fragile. The appeal of total war isn't pure sadism; it genuinely gives one a greater chance to win; it allows one to gain ground and overrun strongholds that otherwise might seem impregnable. But of course, that means that if one side indulges in it, the other must respond in kind -- a vicious circle to a world where everything is fair game and no one and nowhere is safe. And whatever marginal benefits one side or another might get in the conflict, the absolute costs are catastrophic. There's a reason why after World War II we labored as mightily as possible to ensure that a war like that never occurred again -- the world barely survived one war of that degree of fury, and it was far from clear it could survive a second.  

I am inclined to think similarly towards the concept of a free speech total war. Of course, one way of reading Nwanevu's essay is believing that we're already in a world of free speech total war, one impressed upon progressives by conservatives, and they're only playing the hand they've been dealt (indeed, he even alludes to 303 Creative making similar points to what I made in my introduction). As alluded above, I don't think that's true -- I think we're actually quite far from a free speech total war, and we should be very leery about removing the guardrails keeping such a war at bay. A true free speech total war would be cataclysmic, disastrous, and, importantly, would look nothing like even the decayed and damaged free speech culture we have now. It would be far, far worse. We should not run eagerly towards it.