Oh the Shame!

Grad students at the City University of New York (CUNY) are voting on boycotting Israeli universities. The vote is scheduled for the start of Shabbat, because of course it is (update: it has now been rescheduled). And what did Israeli universities do to deserve such unique sanction? To quote from the resolution:

"Israeli professors and students at Israeli universities who speak out against discriminatory or criminal policies against Palestinians are ostracized and ridiculed if not publicly shamed, or worse."

Ostracized? Ridiculed? Shamed? Say it ain't so! Put aside the complete lack of citation, or notation of the quite robust debate over Israeli policies that occurs regularly in Israeli universities -- with the possible exception of being "ostracized", depending on what that means, how is this different from run of the mill academic disagreement? As Liel Leibovitz observes, the resolution seems intent on constructing a monolithic Palestinian and Israeli civil society -- the former uniformly favoring boycotts, the latter parroting the Israeli governmental line in mindless lockstep. Perhaps they should reread their Said.

"Asajews" and Superstanding

As usual always, David Hirsh knocks it out of the park:

Jews who worry about antisemitism are written off as tribal and self-interested; they are constructed as ‘Zionists’ and hence not as antiracists, intellectuals or legitimate members of the left. This hostile, external construction of Jews is in sharp contrast to the eager self-definition of the ‘as-a-Jew’ critics, who parade their Jewishness in order to discredit, in the eyes of the onlooking world, the fears of their fellow Jews.

The ‘as a Jew’ preface is directed at non-Jews. It tempts non-Jews to suspend their own political judgment as to what is, and what is not, antisemitic. The force of the ‘as a Jew’ preface is to bear witness against the other Jews. It is based on the assumption that being Jewish gives you some kind of privileged insight into what is antisemitic and what is not; the claim to authority through identity substitutes for civil, rational debate. Anti-Zionist Jews do not simply make their arguments and adduce evidence; they mobilize their Jewishness to give themselves influence. They pose as courageous dissidents who stand up against the fearsome threat of mainstream Zionist power.
Ironically, this positioning by the tiny minority tends to set the boundaries of civil discourse in such a way as to exclude and silence the legitimate concerns of the majority. It characterizes antisemitism as a right-wing issue and it teaches antiracists to recognise talk of antisemitism as an indicator of racist apologetics.

We need to agree that antisemitism is serious and that it is real; it is not only a threat to Jews but it is also a threat to the labour movement, to intellectual culture and to wider society. Of course we need then to be able to present and discuss arguments and evidence as to what is antisemitic and what isn’t; how we define it and how we recognise it are rightfully up for democratic discussion. The phenomenon which most definitely closes off the possibility of civilized discourse is the claim that Jews raise the issue of antisemitism, knowing that they’re lying, in order to stifle free speech and criticism.

Emphasis added. And note that the "asajew" formulation is hardly unique to Jews either. Derrick Bell's theory of superstanding identifies the same problem: Blacks who talk about racism and Black issues will be viewed "with a grain of salt" if they're taken seriously at all, but Blacks who criticize other Black people or rally to the defense of White people aggrieved by Black claims will be given enhanced standing and greater credibility.

Their Strongest Light

On occasion of the 7th Circuit opinion in Baskin v. Bogan striking down gay marriage bans, and this afternoon's 9th Circuit arguments on the same question, I got to thinking about the types of arguments were seeing in court by defenders of such bans. Other than generic arguments favoring deference to democratic decision-making -- which could be made about any law -- most sophisticated opponents of gay marriage that I know tend to feel that their strongest argument is a sort of souped-up complimentarianism argument advanced by Robert George and his cohorts Sherif Girgis and Ryan Anderson. I've never found much to that argument -- as far as I can tell, it asks the question "how many moral philosophers does it take to spot a naturalistic fallacy" and answers it with "more than three" -- but if you talk to people who oppose gay marriage but want very much to disassociate themselves from crackpots, that's the argument they make.

The reason I bring this up is because that argument really hasn't made much of an appearance, as far as I can see, in the legal briefs filed by the states defending the bans. While friendly amici have raised their claims, I have found only two merits brief that raises this argument: the defendants' motion for summary judgment in Kitchen v. Herbert (D. Utah), and the appellants' brief in DeLeon v. Perry (5th Circuit, challenging Texas' ban). Courts don't feel compelled to respond -- a quick Lexis search did not find a single gay marriage case where George's work was cited in the actual opinion, and indeed the brief in DeLeon spends some time complaining that the district court did not "read some of the many reasoned defenses of traditional marriage--none of which the court so much as acknowledged (let alone refuted)."

Of course this was a quick read, and it's quite possible more states are making this argument (but just not attributing it to George or his colleagues). Nonetheless, and DeLeon notwithstanding, it seems to be the case that the argument that gay marriage bans are justified because marriage inherently and naturally must only encompass a particular type of complimentary bodily union between a man and a woman is not a major part of the defense proffered by the states. Instead, we're seeing contentions that seem to actively degrade the institution, such as Indiana's assertion that marriage is a necessary prison for heterosexual men who would otherwise recklessly impregnate women and flee to their next one-night stand.

Why is this? One answer is that the states have bad lawyers. But that seems unlikely; and in any event this argument is being spoon-fed to them by very well-connected and vocal amici -- it seems odd that they wouldn't jump on it. Another is that they have such confidence in their other arguments that they don't want to resort to more abstract philosophizing -- a possibility that would be more realistic if the arguments they are raising, such as the "prison for heterosexuals" claim, were not being laughed out of court. A third reason is that, whatever its theoretical merits, the argument does not track well to current legal doctrine. It is seemingly dependent on essentialist notions of sex roles, and courts will immediately recognize the tension between adopting such an argument and adhering to the requirements of the equal protection clause as applied to gender. A fourth argument is that the lawyers for the states find the argument of George and his colleagues no more credible than I do -- relying on a bevy of logical leaps and belied by public experience with gay marriage.

The fact that the courts have not felt at all compelled to respond to George's contention lends some credence to hypotheses three and four. Either they don't find it to have any legal purchase, or they don't find it to make any particularly significant normative points, or both. A third option, obviously, is that they are consciously ducking the strongest case that could be made in favor of gay marriage bans so as to artificially buttress their own position. Maybe, but it seems unlikely -- Judge Posner is hardly one to shy from a fight, and it seems to me that if he thought there was any credibility to the complimentarian argument, he'd have addressed it.

Interpretations are what they are, but the fact is that what conservatives take to be their best argument against gay marriage simply isn't getting any traction. It's not capturing the imagination of lawyers, it's not capturing the imagination of judges, and it's not capturing the imagination of the public. As I noted in my own appraisal of George's work, the main goal of his argument is probably not to persuade, but to keep the issue in the realm of "reasonable disagreement", so that 50 years from now, we won't utterly condemn anyone who adhered to a position that it is becoming more and more evident every day is utterly indefensible. The failure of it to gain purchase indicates that it will not succeed even in this more modest effort.

UPDATE: I watched the 9th Circuit oral arguments today in the Idaho gay marraige case. It in some ways verified the above -- the attorney for the state of Idaho started to gesture in the direction of the complimentarian argument, but quickly backed away when pressed; instead, he relied on a theory of "child bonding rights" which allegedly required them to have both their mother and father in their life (coupled with a claim that gay marriage "sends a message" that fathers and/or mothers don't matter and thus will degrade heterosexual marriage). It was obvious he was drawing dead (the panel was Reinhardt, Berzon, and Gould -- one couldn't ask for a better one if you favor gay rights), and it's always interesting to watch someone gamely make their argument when they know they're doomed.

It's All Political

As I predicted, the D.C. Circuit will rehear Halbig en banc. Again, I don't think this decision was either compelled or foreclosed by FRAP 35, because I don't think that there is any real standard regarding whether to grant rehearing en banc other than "if the court feels like it" (though the persistance with which some commentators skate past "resolving a circuit split" as a reason for en banc review astounds me, given that it is one of the more common rationales for such review).

Of course, it is widely predicted that the full D.C. Circuit will be more favorable to the government's interpretation of the Affordable Care Act than was the three-judge panel. This fact makes opponents of the ACA sad. Or, in the case of Michael Cannon, it causes them to fulminate about how the decision to rehear is "political". Here is his rationale:

(1) Senate Democrats eliminated the filibuster on most judicial nominations primarily so they could seat President Obama’s nominees to the D.C. Circuit; (2) President Obama and Senate Democrats then “packed” the D.C. Circuit with their judicial nominees; (3) the Halbig ruling was written by a judge supported by President Obama when he was a senator and praised by Democrats for his fair-mindedness; (4) President Obama nevertheless appealed the Halbig ruling to a panel where, thanks to the elimination of the filibuster on most judicial nominees, Democratic appointees now outnumber Republican appointees by 8-5; (5) D.C. Circuit court Judge Harry Edwards made political arguments both during oral arguments over Halbig, when he shouted at plaintiffs’ counsel that they were trying to “gut the statute,” and in his dissent, where he questioned the plaintiffs’ motives; (6) Senate Majority Leader Harry Reid said the Halbig ruling vindicates the decision to pack the D.C. Circuit; (7) the president’s supporters urged him to appeal the Halbig ruling to the full D.C. Circuit, (8) this move is consistent with the Obama administration’s strategy of delaying this litigation as long as possible, which would tend to prejudice the courts because delay further entrenches the subsidies that the Halbig ruling declared illegal, and increases the disruption that will be caused by eliminating those subsidies; and (9) granting en banc review is a highly unusual move for the D.C. Circuit, in large part due to the influence of Edwards, who has argued at length against en banc rehearings because they consume considerable resources and threaten comity among the judges on the circuit.

You'll note that, nine subdivisions notwithstanding, there are not in fact nine different reasons here. Most of them are various building blocks on the claim made in #2, that the D.C. Circuit was "packed" with Democratic nominees after the elimination of the filibuster. Erm, no. "Packing", as in FDR's notorious Court-packing plan, occurs when one increases the number of slots on a judicial (or other) body so as to give oneself more opportunities to make appointments. "Filling preexisting vacancies", by contrast, is not "packing" the Court under any definition -- otherwise every judicial nomination is a form of packing. When I began my clerkship on the Eighth Circuit, for example, that court's composition of active judges was split 9-2 in favor of Republicans (it's now 8-3). That's not because it was "packed", it's because President Bush was fortunate enough to see seven vacancies open up on the Court during his tenure (President Clinton saw two, President Obama so far has seen one). The imbalance is because he filled vacancies; it would be absurd to say he "packed" the court.

What else? Well, #6-8 seem to all assert that it's "political" for supporters of the ACA to want to win in court, rather than just giving up. Oh, and then we have the idea in #5 that saying that the Halbig challenge would "gut the statute" is a "political argument." Put aside the fact that it's, you know, true -- what's "political" about this argument? This is perfectly legal in nature -- the upshot of accepting the Halbig challenge is that a central component of the Affordable Care Act would, legally, cease to function. The political angle is that lots of people would cheer said outcome because they want the ACA to collapse -- but that doesn't make the descriptive observation any less legalistic.

But as bad as all of this is, it pales in comparison to the mutilation of Chevron that we see at the end of the piece:

I do not see the outcome of en banc review as a foregone conclusion. Consider: even though the Obama administration’s record in these cases is 3-1, the government has lost ground as Halbig and King have moved through the federal courts. At the district-court level, the government won twice, once at Chevron Step One (Halbig) and once at Chevron Step Two (King). At the appellate-court level, only one out of six judges found for the government at Chevron Step One. Four Democratic appointees lent some weight to the plaintiffs’ argument that the Obama administration is violating the clear language of the PPACA.

For those of you who aren't versed on administrative law, Chevron is the case that governs judicial review of agency interpretations of federal statutes (as we have here). "Step one" asks if the statutory text is clear and unambiguous. If it is, that resolves the case (either the agency is or is not following the clear and unambiguous statutory command). By contrast, if the text is ambiguous, then we go to "step two" and ask if the agency's interpretation is a "permissible" one (which is to say, not "the best one" or "the one the court would adopt", but one that acceptable). Functionally speaking, most of the action occurs at step one, because if the court agrees that the text is ambiguous it will be pretty hard to persuade them that an agency interpretation of said ambiguity is ludicrous on its face.

Cannon, you'll note, seems to have this all backwards. The government winning at step two does not "len[d] some weight to the plaintiffs' argument that the Obama administration is violating the clear language of PPACA." To the contrary, it stands for the proposition that the statutory language is not clear at all but the government's read of it is a perfectly valid and permissible one. Now Cannon is right that it is "better", in a sense, for the challengers to lose at step two rather than step one -- but that's just because it's deeply embarrassing for a challenger to ever lose at step one. Whereas a loss at step two occurs simply out of deference to the government, a loss at step one means the court is affirmatively declaring that the plaintiffs' position is unambiguously incorrect as a reading of the statute. To say that the Obama administration is "losing ground" reminds me of Anthony Lane's immortal response to fans who proclaimed that Star Wars Episode III was an improvement over the other two prequels: "True, but only in the same way that dying from natural causes is preferable to crucifixion."

The Text and the Context

On twitter I flagged this post by my former colleague Rob Kar as a truly superb piece of work on the Steven Salaita controversy. I wanted to place that endorsement here as well, because it earned it. And in addition to being stellar on its own merits, it also is a great exemplar of how someone can write a piece I endorse without reservation even where I don't actually agree with all of its points. As should be clear by now, I absolutely agree with Kar's analysis of the academic freedom issues and I think he has a lucid and empathic take on the motivations of all the various players. Since I have taken the position that some of Salaita's tweets are anti-Semitic, while Kar disagrees, that is the topic of this post -- but I don't want that in any way to detract from my admiration for what Kar wrote here or the points he is making (in fact, if I didn't want to have an excuse to praise Kar I probably wouldn't even be using his post as an example -- in the blogosphere no good post goes unpunished, I'm afraid).

Rob's analysis with respect to anti-Semitism focuses considerably on the need to read Salaita's words "in context", agreeing "that reading these [tweets] alone, and out of context, did give me some cause for concern." He is joined in this refrain by, among others, Scott Lemieux ("[W]e should not read the tweet in isolation but in the context of his other writings.") and Dan Filler (Salaita's tweets "must be read in context, rather than individually, if one wants to claim any insights into what he is thinking...."). I am pro-context. I agree with these statements. Though perhaps in context I do not, because I do not have a clear sense about what the speakers mean by the word "context."

Typically, when folks say Salaita needs to be read in "context", they have been contending we must read all (or a representative sample) of Salaita's tweets, not just those that seem to be him in a worst light. At a superficial level this could be read as the anti-discrimination version of the proverbial plagiarist who seeks to defend himself "by showing how much of his work he did not pirate." But I take the exponents of this argument to actually be saying that the meaning of Salaita's tweets should be inferred by reference to his other statements (especially those which immediately surround the offending ones), which cast light upon how best to interpret other such utterances. For example, seeing that Salaita has found certain Jews praiseworthy, has condemned anti-Semitism (albeit in broad strokes, and without any acknowledgment that Jews might have a privileged or even particularly useful understanding of what anti-Semitism entails), and has stated that he views "anti-Semitism" (as he understands it, rather than as Jews do) to be a very grave wrong indeed, should color our read of his tweet contending that "anti-Semitism" (in quotes) has become honorable.

This argument is correct, as far as it goes. All of those facts should be taken into account. I agree that they do imply that Salaita is talking about "false" or "erroneous" charges of anti-Semitism; specifically, his belief that the typical or paradigm case where something is called "anti-Semitic" (at least by a Zionist) is false or erroneous. And I agree that Salaita probably views whatever narrow instances of anti-Semitism he concedes to be "true" charges to be grave sins (though in terms of specifics we basically have ... Macklemore). Yet even with all of that "context", it hardly compels the conclusion that Salaita's statement is unproblematic and that any read of it which views it as anti-Semitic is nonsense. Everyone at least proclaims opposition to various -isms; the existence of such statements is at this stage such a platitude that it scarcely seems relevant, much less dispositive, regarding any analysis into whether a given set of statements implicates a particular -ism. And even taken on pro-Salaita terms, the formulation he used -- which functionally accuses the overwhelmingly majority of Jews of being such pathological liars with respect to their purported oppression that people should be honored if we claim to feel threatened by them -- is problematic in its own right and is utterly toxic to the possibility that any Jew (outside the narrow band that Salaita deems acceptable) who wants to have a serious discussion about the nature of contemporary anti-Semitism will get a fair hearing.

For this, too, is context. Part of the context of Salaita's tweet is a context in which "as usual, Jews are lying/suppressing free inquiry/insane" is considered a valid response to literally any rendition of anti-Jewish hate or violence, anywhere, in any circumstances. What the argument misses, in other words, is that context is not limited to that which Salaita himself creates. Being aware of the salience of the context I mentioned but consciously choosing to ignore it (if not actively trade on it) is a valid consideration in appraising whether something is hateful or not. Indeed, since I don't think the fundamental inquiry here is whether Salaita has a bad heart; I would suggest that it is actually irrelevant whether Salaita was aware of that context (though in this case I think there is little doubt that Salaita is aware of, and agrees with, the prominent trope that Jews routinely make false accusations of anti-Semitism to "silence" all criticism of Israel).

"There is no outside-text", as the deconstructionist mantra goes -- or as I prefer it: "there is no text, only context". The call for context tends not to actually take itself that seriously -- it does not actually want the totality of context to come into play, it wants to arrogate to Salaita and his supporters (political supporters, that is; obviously I am a "supporter" in the limited sense that I think his offer should be reinstated) the exclusive right to define the relevant reality and exclude competing counter-narratives. We are obligated to accept as "context" not just what Salaita says about himself, but what he says about the majority of world Jewry. Context does matter, and it matters when it provides evidence that Salaita does not conceptualize himself as a Jew-hater and does not view his project as one that is designed to demonstrate antipathy towards Jews. But that's not the only context that matters and it is not the only context that is relevant. Equally meaningful is the cultural meaning of what Salaita says -- social contexts which deny that Jewish voices are credible, social contexts which may be perfectly polite to good Jews, respectable Jews, so long as they remain good and respectable and approved by folks like Steve Salaita.

Silence and Salaita

I've pretty much said what I wanted to say about the case of Steven Salaita: Yes I think some of his statements were anti-Semitic; and no, that doesn't mean the withdrawal of his job offer isn't a violation of academic freedom. That's my position and I'm sticking to it.

But with the news that Salaita's appointment may in fact be forwarded to the Board, I got curious as to what major Jewish organizations were saying about that matter. After all, we all know that his un-hiring was the result of their devious influence and their reckless desire to squelch all dissent, right? Ready? Here we go:

ADL: Nothing.

AJC: Nothing.

AIPAC: Nothing.

ZOA (surely I can rely on them to be embarrassing): Nothing!

A whole lot of nothing.

Now, this doesn't mean that "pro-Israel" politics had nothing to do with Chancellor Wise's decision. It would hardly surprise me if some donor who considered him or herself to be pro-Israel made a fuss, and Wise thought that bringing Salaita on would be more headaches than it was worth. If that was her reasoning, of course, she gravely miscalculated. But even if she hadn't, the job of a Chancellor is to endure "headaches" such as that. Universities can survive a few loons on their faculty, but they can't survive donors interfering with their academic mission.

In any event, I bring up the silence of various prominent Jewish organizations not because they're owed any cookies -- maybe one thinks that they had an affirmative obligation to intercede on Salaita's behalf (though given that Salaita has queried whether the ADL should be labeled a hate group, it's doubtful whether he'd appreciate their backing). I only mention it because if Salaita's un-hiring stands, it won't be attributable to the "Israel Lobby" unleashing its terrible power. And by contrast if the decision is reversed, then it won't be a crippling blow to the previously indomitable Israel Lobby either. This is a fight that pro-Israel forces, at least in an institutional capacity, did not get involved in.

Respectability Politics and the Causes of Anti-Semitism

The civil rights leaders were saying to the country: “Look, you guys are supposed to be nice guys, and we are only going to do what we are supposed to do. Why do you beat us up? Why don’t you give us what we ask? Why don’t you straighten yourselves out?” For the masses of black people, this language resulted in virtually nothing.

-- Stokely Carmichael & Charles Hamilton (1967)

I've been doing some more thinking about Rev. Shipman's letter about which I posted on earlier. The letter posited that the best thing Jews (or "Israel's patrons") could do to stop anti-Semitism abroad would be to lobby for changes in Israel's policies. Many people, myself included, lambasted Rev. Shipman for victim-blaming.

The primary defense of Rev. Shipman has been to assert that his was a mere descriptive observation that anti-Semitism spikes when Israel takes actions that anger others (in a semi-apology Rev. Shipman refers to it as a "correlate"). See, for example, the comments here or Phoebe Maltz Bovy's interlocutors. What's so objectionable about noting a correlation? The first answer is that his letter wasn't just a descriptive observation but actually focused on a normative prescription -- objectionable Israeli acts correlates with anti-Semitism, therefore, people should object more strenuously to objectionable Israeli acts. The description does not lead to the prescription -- if such a correlation exists, the prescription could just as easily be objectionable Israeli acts correlates with anti-Semitism, therefore, people should be exceptionally vigilant against and display zero-tolerance towards those who target Jews writ large under the guise of "objecting to Israeli policies". It may or may not be true that female alcohol use "correlates" with sexual assault; nonetheless, the right prescriptive response is to take a stronger stand against those who would exploit vulnerable women, not "women shouldn't go to bars."

But I also want to unpack the alleged correlation on its own terms a bit, because I think doing so leads to some interesting observations. The argument is basically one of "respectability politics" -- that the way for a group to overcome prejudice against it is to act in ways that earn the respect and esteem of their fellows. And on the one hand, there's a degree to which the descriptive claim is true to the point of banality -- Jews are less likely to be disliked if prominent Jewish actors don't take actions that people dislike. The problem is that this framework enforces anti-Semitic impulses in that it tacitly accepts the entitlement of non-Jews to dictate Jewish behavior. When a group is forced to tailor its behavior to match the preferences of dominating outsiders, the outsiders will be very likely to view such acquiescence as its birthright and be more incensed if and when the dominated group does take independent and disapproved actions. This, as I argued recently, lies at the core of modern anti-Semitism and its linkage to Israel:

It is a unique feature of the past 60 or so years that . . . . sometimes, in some contexts, Jews can criticize Christians without the automatic specter of a massacre looming. Or -- and this I suspect is worse than Jewish criticism -- Jews can sometimes ignore Christian criticism without immediate and obvious consequence. For people who view their power over Jews as an entitlement, this I think is what really rankles: there is an entity, that is Jewish, that Christians criticize, that sometimes does not listen.

If being seen as an equal requires acting as if one is an equal, a huge part of that is not adhering to the demands and mores of the dominant group but rather (when appropriate, not for its own sake) making conscious decisions to sometimes disregard them. This was a key part of the argument that Zionism would reduce anti-Semitism over time -- like the picked-on kid who stands up for himself and thus earns the respect of the bullies, the existence of Israel places Jews in a historically near-unprecedented position of political and social agency akin to that enjoyed by various gentile majorities through much of history. Expressing that agency and autonomy places Jews on the same plane and therefore creates a descriptive equality which (the hope goes) will change attitudes to match. The call -- from non-Jews at least -- for "respectability politics" is really just a call for Jews to revert to the subordinate state of affairs where they do, as a matter of course, listen to gentile demands.

Put another way, it probably is the case that a non-Jew is less likely to punch a Jew in the face if he perceives Jews (as a group) as largely behaving in ways he sees as salutary. But that does not mean there is necessarily less anti-Semitism in such a state of affairs, if this view is transformed into an entitlement to such agreeability from Jews. That's just anti-Semitism in a different form; the "safety" it provides to Jews purchased at the price of their independence. Anyone can have positive attitudes towards groups who behave in ways they like; the true test of egalitarianism is respecting the minority when it behaves differently than how you'd want it to.

I don't mean to minimize the difficulties here -- there might be no more nettlesome problem facing pluralists than deciding when we must defer to alternative political practices we find distasteful versus when we're obliged to speak out against them. I don't take the view that people from one group can never criticize those of another -- including members of traditionally privileged groups vis-a-vis their historic subordinates. But respect for pluralism means there must be that basic acknowledgment of the right of differentiation, the right of the other to make choices different from those which we imagine we would make were we in their shoes. And perhaps more difficult than that, due accord for history means being appropriately skeptical that the dominant group has it right in every case where majority and minority disagree (even passionately) about important normative questions:

Privilege -- gentile or otherwise -- means that one can always choose to maintain the primacy of one's own perspective on matters affecting the marginalized group. A very large part of anti-oppression analysis is about convincing the privileged to at least suspend that outlook and recognize that it is possible -- maybe even likely -- that the marginalized person is epistemically more credible on the subject, and that our own view -- even if honestly arrived at, even if fervently held -- may be suspect after all. Persons consistently unwilling to engage in that "quietude" towards Jewish voices cannot claim any presumption of egalitarian views vis-a-vis Jews.

It is precisely because we have the duty to hold these things together -- our right to be critical of others, our duty to respect difference, and our obligation to be mindful of our privilege -- that I have asserted the need to foreground discussions of anti-Semitism when discussing Jewish institutions. It ensures that the positions we take about Jews "seriously grapple with the ways in which historical and present anti-Semitism implicate the positions that [we] hold and how [our] arguments account for the actual facts of Jewish existence and what they need to exercise their individual and collective rights as a people." Such grappling, I suggest, is a prerequisite to thinking about Jews well.

As for me, I tend to doubt both the respectability politics position (that if Jews behave well, people will like us and anti-Semitism will go away) and the muscular Zionist counter (that if Jews vigorously demonstrate their independent agency, people will respect us and anti-Semitism will go away). In many ways, I view anti-Semitism as a constant -- I'd like it to disappear, of course, but I don't think Jewish political energies are best spent trying to convince non-Jews to "straighten yourselves out." Zionism is important not because Jewish agency makes people respect us but because it makes it matter less if they do or not -- they can fulminate all they want about how much they hate Jews, because unlike years past we've got some big fucking tanks backing us up. And in turn, I don't support Palestinian equality and national aspirations because I think being nice to Palestinians will make people like Jews more. I do it because, well, the whole point of being an autonomous agent is that we get to make the choices, and I want to choose to do the right thing. People who say that we can't create a Palestinian state because of this or that thing Palestinians do or refuse to do drive me nuts: what's the point of Zionism if Jews are going to sit on their hands and complain while waiting for someone else give us permission to make a decision? (You may sense the roots of my support for unilateral withdrawal). As the black nationalist saying goes: "do for self."

The Tan Man

Let's be real: That was an ugly-ass tan suit. That being said, Rep. Michael Kors Peter King (R-NY) seriously needs to get a grip:

"There's no way any of us can excuse what the president did yesterday," King said on NewsMaxTV on Friday. The interview was flagged by Buzzfeed. "When you have the world watching … a week, two weeks of anticipation of what the United States is gonna do. For him to walk out —I'm not trying to be trivial here— in a light suit, light tan suit, saying that first he wants to talk about what most Americans care about the revision of second quarter numbers on the economy. This is a week after Jim Foley was beheaded and he's trying to act like real Americans care about the economy, not about ISIS and not about terrorism. And then he goes on to say he has no strategy."

You're not trying to be trivial? Try harder. Geez.

More On Christian Contributions To Combating Anti-Semitism

Responding to Deborah Lipstadt's column on the rise of anti-Semitism and "why Jews are worried", Episcopalian Reverend Bruce M. Shipman (affiliated with Yale University) had this to say:

Deborah E. Lipstadt makes far too little of the relationship between Israel’s policies in the West Bank and Gaza and growing anti-Semitism in Europe and beyond.

The trend to which she alludes parallels the carnage in Gaza over the last five years, not to mention the perpetually stalled peace talks and the continuing occupation of the West Bank.

As hope for a two-state solution fades and Palestinian casualties continue to mount, the best antidote to anti-Semitism would be for Israel’s patrons abroad to press the government of Prime Minister Benjamin Netanyahu for final-status resolution to the Palestinian question.

Institutional Christianity continues to display its unrivaled expertise in the field.

H/T (among others) Paul Horwitz.

Thinking Critically About "Uncritical"

One hears the refrain thrown out repeatedly, even casually -- the great mass of Jews (or perhaps most Americans, but mainly Jews) who are "uncritical supporters of Israel." Often times it comes from Jews who claim to have been blind before they learned to see. Here's Antony Lowenstein:

Although support for the Jewish state has been an unofficial second religion for Jews for decades – in my own family it was simply expected that Israel would be uncritically backed in times of war and peace, with Palestinians demonised as unreasonable and violent – times are changing.

And here's Bonnie Honig: "Too many of us are too committed to being uncritical of Israel."

It comes in academic tomes -- Laurence Silberstein's chapter on "American Jewry's Identification with Israel" uses variations on the word "uncritical" (or synonyms) four times in its first page. It comes in pleas that I might generally support, such as in this letter from Israelis for a Sustainable Future: "The belief that being “pro-Israel” means uncritically supporting the actions of the Israeli government and military does not help the Israeli people."

And so it is that Gil Troy, responding to (natch) Joseph Palermo calling him "an uncritical booster of Israel", writes the following:

Calling me “an uncritical booster” suggests I am more propagandist than analyst, more cheerleader than thinker. It plays into stereotypes of pro-Israel types as monolithic and blind to any Israeli faults – an absurdity considering the many passionate debates constantly roiling the Zionist community. It legitimizes the delegitimization of Israel through a perverse reverse projection. While escalating every Israeli imperfection into proof that Israel should not exist, delegitimizers project their absolutist all-or-nothing attitudes onto Israel’s supporters. Underlying this is an unfair singling out of Israel as a country on probation, acceptable only if it behaves well. The charge also reflects an anti-Zionist prejudice assuming that thinking people can only support Israel by bypassing logic.

Contrary to Palermo’s caricature, I have publicly criticized Prime Minister Bibi Netanhyau for failing to lead boldly, charging him with acting like a Chicago ward heeler rather than a statesman. I have said that Israeli leaders should be driving the peace train rather than Barack Obama or John Kerry, tapping Israel’s world-famous creativity to find solutions. I criticized anti-Arab violence long before the horrific revenge killing last month. I have criticized the chief rabbinate for being too rigid.

In short, just like a patriotic American criticizes the United States – while still loving it; just like a devoted wife criticizes her husband while still loving him; I criticize Israel – without questioning Israel’s right to exist. To support Israel one need not mortgage one’s soul or override one’s critical faculties. In fact, democratic Israel invites thoughtful supporters, loving critics, ardent advocates for different solutions to the country’s various problems.

He's right of course. But there's something deeply pathetic about this laundry list of times he's criticized Israel -- as if this will at all alter the refrain; as if proof that Jews (and not just the Naomi Klein fans of the bunch) criticize Israel on a regular basis is even relevant to the belief in question.

Because on face, the idea that there is any significant subset of Jews who are "uncritical supporters of Israel" is not just untrue; it's transparently ludicrous. Anybody who's had an opinion on Israel is critical of it, at least some of the time -- the odds that multi-million person sovereign nation would always in all cases map on precisely to anyone's idiosyncratic policy preferences (much less somehow managing to unite the entire Jewish community writ large in "uncritical" support) is obviously absurd.

"Israel critic" is an incredibly broad term that probably encompasses every single person who has ever had an opinion on the subject -- including Israel's defenders. I am a defender of Israel, I am also a critic of Israel. Caring about something means having opinions about it, it would be a remarkable coincidence if my opinions about Israel (or any other country, or institution, or person) perfectly tracked Israel's actions. ZOA is a critic of Israel, as it has every right to be. The point being, first and foremost, that those who adopt the mantle "critic of Israel" are in reality a narrow and provincial subset of the class, who should not be allowed to insist that the vast majority of Jews are mindless zombies "incapable of criticism of Israel."

When they say "uncritical of Israel", they mean "not criticizing the things I want criticized, in the manner I want to see them criticized." But that Jews reject particular forms of criticism does not make them "uncritical", that's an exercise of critical faculties.

Simply put, I'm sick of hearing about this mythical sector of uncritical Israel supporters. It doesn't exist. But the people who partake in the refrain are people who seemingly can't make the, dare I say critical, distinction between disagreeing with a specific criticism and being incapable of criticism.

Blurring the DREAM

Rand Paul has just come out in favor of deporting hundreds of thousands of undocumented Latinos who came to America as children. But he also traveled to Guatemala to give medical examinations to some lucky locals. Jon Chait smells a new policy:

The 2016 hopeful opposes universal health insurance, and he wants to deport half a million people who grew up in America. But Rand Paul will personally provide every deported immigrant with a free eye exam. Call it compassionate paleolibertarianism.

That youth support is around the corner!

The Apostates

A very interesting review by Adam Kirsch of three books which touch on the theme of Jewish apostasy -- Jews who betray the Jewish community to hostile gentiles. This, of course, must mean something beyond criticizing Jews -- Kirsch immediately draws the distinction between those who criticize from within the community as an attempt to make it better, and those who remove themselves from the community and seek to tear it down. Moreover, he observes that their is a significant qualitative difference between how one criticizes Jews when they are purely in a position of marginalization and weakness versus when they have gained some measure of power and influence (not the least of which comes in the form of a state with an army).

But the key point Kirsch returns to is that Jewish apostasy has been the source of some of the gravest threats to Jewish lives and livelihoods across history. It was medieval Jewish apostates who could credibly claim "insider" status whose polemics against the Jewish community and the Talmud sparked some of the most aggressive anti-Semitic campaigns by the Church. This is in many ways the violent cousin of Derrick Bell's concept of superstanding -- the heightened authority African-Americans receive when they speak out against the majority of the African-American community. Likewise, there is always a healthy audience for Jews who will eagerly tell non-Jews exactly what they've always yearned to hear about Jews; that even a Jew will affirm that most Jews are worthy of contempt.

I don't mean to minimize the difficulty of the question: freedom for Jews, or any minority group, includes the freedom to dissent from the orthodoxy of one's own community. No doubt there are strong vested incentives for those currently in positions of authority within a community to take a broad view of what counts as apostasy against it. This is an age-old problem -- one not limited to Jews -- and I don't pretend to have an easy answer other than adopting a principle of anti-tokenization. It is fine to be a Jew who is deeply critical of mainstream Jewish practices. But it is not okay for people to treat such voices as emblematic of Judaism such that it replaces their need to engage with the Jewish community writ large.

Pretend-Standard

To everyone furiously parsing Rule 35 of the Federal Rules of Appellate Procedure in order to argue that Halbig v. Burwell (also affectionately known as the "moops" case) is or is not en banc worthy -- stop. We all are well aware that the standard for en banc review is no more and no less than "if the court feels like it." That's it. Indeed, when I clerked on the Eighth Circuit a panel once asked for supplemental briefing on whether a case should go en banc (some of the judges disliked a prior Eighth Circuit precedent that granted jurisdiction over the appeal in the first place), and the lawyers' really had no way to argue one way or the other because granting en banc review is for all intents and purposes a pure exercise of unfettered discretion.

A Ship Docks in Oakland

Protesters in Oakland have blocked an Israeli-owned ship from unloading. The ship is owned by ZIM, the 10th largest shipping company in the world. Notably, ZIM is privately-owned (the Israeli government divested its minority ownership in 2004) and to my knowledge there is no claim that the company is implicated in the occupation other than by its nationality.

Protesters claim that local unionized dockworkers (members of the International Longshore and Warehouse Union, I believe) honored the picket line and refused to unload the ship; with one leader saying "[t]his is the first time in history that this has happened." If indeed the workers made a voluntary decision to refuse to unload the ship in deference to the picketers, that would be a first -- but only because the last time time this happened the picket temporarily succeeded only because the union workers feared for their personal safety if they unloaded the ship.

UPDATE: This news story indicates that we're in roughly the same boat as we were in 2010 -- union workers did not cross the picket line "for safety reasons." The ILWU confirmed that it had not taken a stance favoring (or disfavoring) the picket.

UPDATE x2: The ship was unloaded last night, when the union concluded there was no longer a "safety issue." Basically, this great non-violent BDS "success" was that they successfully created a safety hazard for union workers which kept them off the job. Hurray!

Return of the Mack

I've already stated my view that the revocation of Steven Salaita's offer to teach at Illinois was a violation of academic freedom. So I think Corey Robin is surely right that whether or not Steven Salaita's tweets are anti-Semitic has no bearing on the legal (or normative) argument regarding whether he should have had his offer revoked. But his claim that Salaita has "a long history of not only denouncing anti-Semitism in general but also confronting specific instances of it on Twitter" because (in addition to non-specific bromides about equality) he courageously called out Macklemore defies parody.

The blogger he links to, far from providing a "monumental analysis" demonstrating the lack of any anti-Semitism in the tweets, instead provides a textbook demonstration of what (in the racial context) Ian F. Haney Lopez has called the inference of innocence (or what I have labeled innocent until proven Nazi). No matter how sharp the impact on the minority group or how it is perceived by them, if there is any reading of the statement which with a straight face can be attributed to a rationale other than overt antipathy, then the act or statement is an "innocent" one and any claim of discrimination is spurious. Much of the apologia comes in the form of ludicrously fine parsing that would make Kevin "but humans are primates too!" Williamson blush. The defense of the "anti-Semitism is honorable" tweet actually takes two contradictory positions -- he both argues on the one hand that Salaita was mocking people who think Zionism has made anti-Semitism "honorable" and, on the other, that he agrees with such people because "Zionism" has labeled things that he considers to be "honorable" anti-Semitic (how any ideology, as opposed to individual persons who may or may not identify as Zionists and may or may not be representative of the broad spectrum of Zionist beliefs, could have that effect is left unsaid I misremembered the tweet -- he attributed this to Zionists rather than Zionism. Even still, this remains a gross overgeneralization of a huge swath of the Jewish community who stand accused of persistently deploying anti-Semitism in bad faith). In any event, the latter view is clearly the correct interpretation; it is also not fundamentally distinct from people who claim to wear "racist" as a badge of honor because they accuse Al Sharpton of being too quick to cry racism; and consequently feel justified in adopting a blanket policy that virtually any time any Black person says something is racist they're probably lying and/or insane. Which is itself anti-Semitic.

Simply put, anti-Semitism (like most -isms) always comes couched in platitudes about how the speaker is not anti-Semitic and is in fact deeply horrified by the real anti-Semitism (defined as Hitler and/or some safely trivial event far from any political or social positions of value to the speaker). As we found out today, one can claim one is not an anti-Semite at the same time as one calls for each civilian death in Gaza to be met "eye for an eye" against the largest Jewish communal organization in another country. To engage in such "monumental" efforts to find a twisted path where the statements are in fact fully compatible with totally egalitarian attitudes towards Jews and Jewish equality is difficult to square with any sort of politics which respects either the history of anti-Jewish oppression or the right of Jews to be taken seriously when they describe their own experience.

Conveying a Final Message to the Jews of South Africa

The other day, I noted an ultimatum delivered by the head of the ANC's Western Cape branch to the South African Jewish community. It gave them "until the 07 August 2014 to stop their Zionist propaganda in Cape Town, failing which we will boycott and call strikes at all of their member – and supporting companies and organisations."

On the one hand, the official (Tony Ehrenreich), gave the Jews an extra week to respond. On the other hand, he also raised the stakes well beyond a "mere" boycott:

Ehrenreich wrote that South Africa’s Jewish Board of Deputies, the national Jewish communal organization, should suffer for its support of Israel.

“This makes the Jewish Board of Deputies complicit in the murder of the people in Gaza,” he wrote. “The time has come to say very clearly that if a woman or child is killed in Gaza, then the Jewish board of deputies, who are complicit, will feel the wrath of the People of SA with the age old biblical teaching of an eye for an eye.”

And now we have a call for a pogrom. Lovely.

In case you're curious, yes the SAJBD is accusing him of hate speech and incitement. Ehrenreich, for his part, says he will sue the SAJBD "for supporting crimes against humanity in Gaza, and for being complicit through their actions or inactions, in the killing of women and children in Gaza" (emphasis added).

Finally, Ehrenreich also gets off the obligatory denial that he is in any way anti-Semitic for calling for mass violence against the South African Jewish community. While he contends he is attacking only the SAJBD for "condoning" the Gaza campaign, it is notable that his verbiage (which equates silence with active support of alleged war crimes) would apply to any Jew (really, any person, but of course Ehrenreich only focuses on Jews) who has not spoken out against the Gaza campaign in a manner Ehrenreich finds acceptable. See also Bongani Masuku's statement that "silently consenting or grumbling under tables" would not be sufficient for Jews to "imagine [South Africa] to be their home."

So What if Just War is Impossible?

From time to time one hears the following apologia for various Palestinian war crimes (this is one example, but it's decently representative):

Based on the fact that the West Bank and Gaza are occupied territories that are economically and politically controlled by Israel – and where there is no freedom for its residents – I believe they have the absolute right to fight for that freedom. I personally do not think Hamas’s rockets are a productive strategy of resistance, but it still has the right to respond in such a manner – as does any liberation movement against colonialism.
[...]
The argument that Hamas is using human shields has no weight. There is no evidence that this is actually occurring en masse. Gaza is tiny – about the size of the Cape Flats. It is one of the most densely populated places on the planet. There is no place where Hamas could stockpile arms away from a population centre.

This argument, in essence, is that Palestinians have a "right to fight" against Israel, and since the only way that they can functionally exercise that right is by indiscriminate rocket fire and by intermingling their fighters within the Palestinian civilian population, those activities are acceptable.

This is, of course, nonsense. The laws of war do not contain an exception for when following them means one's preferred side won't win. The laws of war are, by design, indifferent as to which side "should" win, operating off the reasonable presumption that each side in any armed conflict will think itself just and therefore view itself as exempt from the strictures of the laws of war. This is why we largely no longer adopt the Augustinian approach to just war theory. The point being, if you can't win a war while obeying the laws of war, then don't fight it. There is no right to win an armed conflict.

But here's the thing -- this cuts both ways. One also often hears defenses of Israeli strikes which have crippling civilian casualties on the grounds that, well, Hamas uses human shields and stockpiles its weaponry in civilian areas. Quite true! But that is not carte blanche authority for Israel to do whatever it will. There are valid questions over who should be considered responsible for civilian casualties when Party A strikes Party B's military targets embedded in a civilian population -- if for no other reason than to deprive B the incentive to do just that. Nonetheless, it cannot be the case that infinite civilian casualties are justified simply because of B's (admitted) legal violation. Considerations of proportionality need to come into play. And if that limits Israel's ability to effectively prosecute a war on Hamas -- well, the laws of war don't guarantee you get to win a war.

Immigration versus Colonization

Periodically, one hears some, er, "reactionary" elements describe the movement of non-White persons into the United States or Europe as "colonization". "The Mexicans are colonizing Texas!" "The Arabs are colonizing France!" Given the history of how the United States got control of Texas, there is irony here. But it also got me to thinking -- when a person moves from the place they were born to another country, what distinguishes "immigration" from "colonization"? Both involve people permanently moving from political jurisdiction A to political jurisdiction B. But the former term is positive, happy, pursuit-of-happiness and land-of-opportunity. Even said reactionaries usually characterize their opposition as being to illegal immigration; as opposed to immigration generally which was the foundation of our nation. Colonization or colonialism, by contrast, is bad, evil, sounding in injustice if not outright theft of lands that rightfully belong to others.

So what is the difference? One answer is that we call the movement of people we approve of "immigration" and that which we disapprove of "colonialism". But that's not satisfactory -- it seems like there is an actual distinction here worth preserving. Another answer is that immigration is colonization where it does not come with the permission of the members of the destination polity. But if that's right, then the conservative immigration critics are right that illegal immigrants are engaging in acts of colonialism, which really doesn't sound correct to me.

Drilling further, it seems that a large part of colonization has to do with control. So maybe immigration becomes colonization if the new immigrant group wrests control over political outcomes from the prior residents. But once again, on reflection that can't be right -- it cannot be the immigration is permissible so long as the immigrants never end up winning elections.

Perhaps what's missing is the element of external control. When we talk about "colonialism", we usually have reference to a mother country. The United States was a British colony, Indonesia was a Dutch colony, the Congo was a Belgian colony, etc.. So maybe the mark of colonialism is that the new population wrests control over political outcomes and transfers it to a foreign entity. One colonizes on behalf of somewhere, one does not immigrate on behalf of anywhere. That seems to me to be the cleanest distinction, and the one that most closely coheres to the traditional model of colonialism (colonies and parent nations). But maybe it also suffers from inadequacies -- I'm happy to hear suggestions. But the point is it seems like we don't have a strong distinction of when people have a right to move to a new location (indeed, it's praiseworthy or at least respectable) versus when it is improper. This leads to considerable conceptual fuzziness; it also buttresses anti-immigrant sentiment insofar as it poses too-strong rights claims on behalf of those who happen to be residing on a plot of land at some arbitrary prior point in time.

Sometimes Conservatives Win Elections. In Conclusion, Jewish Self-Determination is a Failure

I've been wanting to link to this Tablet piece by Eylon Aslan-Levy on why Europe has so much trouble wrapping its head around anti-Semitism for days now, but I've never had the opportunity. The point is, it's really good -- in particular in noting the fact of Jewish history that serious anti-Semitism has typically co-existed with relative Jewish prosperity. But I didn't have much more to say than that, and that seemed thin gruel.

So let's just use the rightness of that post as a counter-balance to the embarassing wrongness of this one. It starts off well enough, with the writer admitting (after a commenter's challenge) that "There is no reason to assume that all Zionists support Likud's policies." Indeed! In fact, we can safely assume that the 77% of Israelis who voted for parties other than Likud oppose its policies at least some of the time, and the roughly 50% of Israelis who cast ballots for parties outside Likud's coalition oppose these policies most of the time.* So while this shouldn't have exactly been some sort of mind-bender, good work nonetheless!

But then we get this howler:

That said: if you support creating a religiously ethno-nationalist and democratic state, you can’t simply disavow any responsibility for the conduct of a right wing nationalist party. In democracies, one faction never retains control forever. The ideology, conduct, and treatment of perceived enemies of the nation we find in Likud seem pretty typical of right wing nationalism generally (they seem worse because the occupied territories and Hamas belligerence provide some unique opportunities for bad behavior). You simply can’t count on a state with a religious ethnonationalist identity that isn’t going to have a belligerent conservative faction in charge occasionally.

Hmmm. Interesting point. But perhaps it could use some editing:

That said: if you support creating a religiously ethno-nationalist and democratic state, you can’t simply disavow any responsibility for the conduct of a right wing nationalist party. In democracies, one faction never retains control forever. The ideology, conduct, and treatment of perceived enemies of the nation we find in Likud seem pretty typical of [the] right wing nationalism generally (they seem worse because the occupied territories and Hamas belligerence provide some unique opportunities for bad behavior). You simply can’t count on a state with a religious ethnonationalist identity that isn't going to have a belligerent conservative faction in charge occasionally.

Consilience is your friend!

Seriously, can anyone tell me what work "religiously ethno-nationalist" is doing here? For starters, modern Zionism isn't -- or at least isn't necessarily, and was not originally -- a religious ideology. I know that Jews' unique status as both a religion and an ethno-national group can be confusing, but let's put in a modicum of effort shall we? The author later on admits to some basic misunderstandings of the structure of religious Jewish politics in Israel anyway, but he really should know that founding-era Zionism in particular was sharply secular. Indeed, most of the explicitly religious elements of Israel's current political structure (such as devolving control over family law to religious authorities) is an Ottoman era holdover. Is it one I'd love to see repealed? Yep. Is the most fervent advocate favoring such a repeal in the current Likud-led coalition? You bet.

Okay, how about "ethno-nationalist"? I take the author's point to be that states which specifically are founded on nationalist principles are more vulnerable to reactionary right-wing elements which oppress minorities. Is that true? One problem with figuring it out is that most states today remain founded on ethno-nationalist principles. But even those states which plausibly are not founded on that concept or do not currently identify that way (e.g., the United States, the former USSR, China -- it's notable that all of these cases are at best arguable ones) also periodically see right-wing coalitions come to power and act in ways hostile to minorities. That seems to be a unifying feature of states and polities. Indeed, the real moral of the story here is that a state does not need to explicitly identify itself in ethno-nationalist terms in order for an ethno-nationalist element to have appeal amongst members of a majority ethnic class. Israel, after all, famously does not characterize itself as a Jewish state in its Basic Laws -- it is neither unique nor surprising that this does not eradicate the potency of right-wing ethno-nationalist claims within the Israeli polity.

A great pet peeve of Israel supporters is when people take attributes common across many or all states and single out Israel for special opprobrium. Israel does have a reactionary right-wing nationalist element in it, one that I think is repulsive on its own terms and destructive to the long-term wellbeing of both Israelis and Palestinians (not to mention the Jewish self-determination project more generally). But there's nothing unique or strange about that. Pretty much any democratic polity has elements like that; using their existence to say that the whole group's desire for self-determination is doomed to failure is ludicrous on its face and obviously not going to be applied consistently in practice.

* This is a simplification of course, but its worth noting that in the current coalition only two of the four members of the current coalition (Likud-Yisrael Beiteinu and Jewish Home) are really committed to the settlement and greater Israel project that the author is most angry about. Together, these two entities combined for about 32% of the vote. Yesh Atid (14%) is somewhat ambivalent, while Hatnuah (5%) ran specifically as a pro-negotiations, pro-peace party.

Academic Freedom versus Academic Legitimacy: The Case of Steven Salaita

Earlier this year, I published a short piece in the Florida International University Law Review's microsymposium on academic freedom titled "Academic Freedom versus Academic Legitimacy." The piece unfortunately isn't available online (UPDATE: here it is!), but it's short so I'll just repost it below:

What does it mean when a university department invites a person to speak? It clearly does not mean is that the department endorses the speaker’s views. Persons are regularly invited to speak in a university setting whose views are opposed by many if not most of their audience—often including the very people who invited them. Rather, the invitation indicates that the department believes the speaker is academically legitimate: their contribution is one that, whether right or wrong, usefully advances scholarly discussion. It is probable that most members of a university community believe that both Newt Gingrich and David Duke are “wrong”, but only one’s views are illegitimate.

Academic freedom and academic legitimacy map imperfectly onto one another. Academic freedom is content-neutral: it does not attempt to distinguish between “correct” and “incorrect” views. Academic legitimacy, by contrast, is very concerned with content: it asserts that certain views should not be considered valid entrants into a productive scholarly discussion. But these two concepts are often conflated. A university facing criticism over a controversial speaker will often respond by invoking “academic freedom.” This is a valid response at one level: academic freedom implies that even a David Duke cannot be barred from speaking if invited by an authorized member of the university community. But at another level, it misses the point entirely. The problem is not that Duke was allowed by some higher university authority to speak, the problem is that he was invited in the first place; that a department or research center or student group believed his views were academically legitimate. To structure the question in terms of academic freedom—should he be banned—misstates the good being pursued. The demand is not for formal barriers against such horrible views but to not need such barriers at all.

To see why this distinction matters, consider another obvious truth: David Duke is not invited to speak at colleges. This is not because “academic freedom” is being systematically breached, but rather because the academic community has voluntarily decided that Duke’s views do not make any useful scholarly contribution. And that we’ve made that decision is a very good thing—we would rightly worry about the caliber of an academic community that could not come to a general intersubjective agreement that Duke’s views are illegitimate.

But what happens when this consensus doesn’t exist? Efforts to restrict allegedly malign ideologies are assumed to be a tool of the strong, but often they are a tactic of the weak—people who are not confident that their community will unify in agreement that the ideology is in fact oppressive. That there now is massive intersubjective agreement that overt White supremacist ideology is illegitimate gives people of color nothing more than what Whites long enjoyed effortlessly, and if that consensus were threatened minority students would be rightly concerned.

Many controversies labeled as ones of “academic freedom” are actually about academic legitimacy. Is Pat Robertson properly analogized to David Duke? Is Gilad Atzmon? The Black Panthers? BDS activists? David Horowitz? What about “scientific” creationists or climate change denialists? It is fair game to argue that a well-functioning university community would not view any or all of these persons as academically legitimate, and that position itself is perfectly consistent with believing that agreements regarding academic legitimacy cannot be enforced through explicit bans or sanctions. That is all that “academic freedom” contributes to the discussion: a constraint on remedies. Enlisting it to do more confuses two distinct questions and sidesteps the true nature of many academic controversies.

David Schraub, Academic Freedom versus Academic Legitimacy, 9 FIU L. Rev. 71 (2013)

Today I read the story of Steven Salaita, whose offer to teach at the University of Illinois was rescinded after review of "uncivil" tweets about Israel, Jews, and anti-Semitism (Salaita previously taught at Virginia Tech). Corey Robin is appalled; he labels this "a symptom of the effects of Zionism on academic freedom, how pro-Israel forces have consistently attempted to shut down debate on this issue, how they 'distort all that is right.'" Salaita provides an "unapologetic defense of the rights of Palestinians", while some of his tweets may "jar or shock a tender sensibility", that's part and parcel of writing on social media. The overall theme of the post is that Salaita is a sometimes brash but valuable contributor to scholarly discourse who is being "punished" for being critical of Israel.

And then we read some of the tweets in question. I'll focus on two of the most egregious:

"By eagerly conflating Jewishness and Israel, Zionists are partly responsible when people say antisemitic shit in response to Israeli terror."

"Zionists, transforming 'antisemitism' from something horrible into something honorable since 1948."

Calling anti-Semitism "honorable"? Yeah, I think we're a bit beyond "uncivil" here. The fact that it is couched in a "critique" of a particular sector of Jewish experience and comes with a healthy dose of victim-blaming hardly changes the analysis: if I wrote "Al Sharpton, transforming 'racism' from something horrible into something honorable since 1991," I would not simply be criticizing the National Action Network. One would hope we'd have little trouble understanding the racism latent in such a statement (though admittedly I suspect a significant segment of the American political right would fervently deny there is any such racism in that statement. Needless to say, emulating the right-wing definition of racism as "Klan members, and then only if they are chanting 'White Power' while actually lynching someone" is hardly a ringing endorsement).

But here's the thing -- this observation doesn't change Robin's analysis either. And that's what I find frustrating. This debate seems to be, on the one hand, "Salaita's views are abhorrent and therefore Illinois was right to rescind his offer" versus "Salaita is a valuable contributor to scholarly discourse who is being wrongfully punished for his unpopular views." In other words, both sides are conflating Salaita's academic freedom -- the freedom not to be punished in the academic context due to one's political opinions -- and his academic legitimacy -- whether his statements should be considered in-bounds when we think about what positions are valid in political discussion. The right answer, it seems to me, is that "Salaita has said some horrifying, anti-Semitic stuff, but Illinois made its bed and now it has to lie in it." Academic freedom still protects people who say racist or anti-Semitic trash. I can say from my time teaching at Illinois, no less, that I was the periodic recipient of blast emails from a tenured faculty member who liked to go on about the Zionist Fascist Neo-Con Straussian Rockefeller Evangelical conspiracy of war and world domination. Tenure is a beautiful thing. The point being, said faculty member had the right to say those things, but one would hope that everyone else recognized him as a lunatic (which they did). It wasn't scary that he wasn't fired, but it would have been very scary if most other faculty members thought he had a point.

Turning back to Salaita's case, if one wanted to there are ways to distinguish it from the "academic freedom" paradigm. The tweets in question are not part of any scholarly discussion, they were mere social media outbursts. For obvious reasons though I have no interest in seeing academics targeted due to their social media postings, so as far as I'm concerned that's out. Another difference is that Salaita was only not hired at Illnois, he was not fired for his positions. That would be a valid distinction, I think, had this decision been made at the department level. I addressed this issue previously in the context of supposed "discrimination" against faculty candidates who oppose LGBT rights:

Being a law professor is an academic, policy-oriented position. The question of LGBT rights is a normative, political question. It goes to the heart of what a professor does. If someone gets that question "wrong", is there any reason why I can't evaluate them more harshly on the merits of their candidacy? How else is one supposed to evaluate it? This gets to the deep tension within academia: academic freedom means letting people take whatever position they like and pursue any line of inquiry they desire; academic merit necessarily requires judging those positions and inquiries as good or bad. I don't mean to discount the possibility that somebody can take a position that I think is wrong while conceding that they argue for it in a powerful and sophisticated fashion. I do mean to say that the deeper ingrained a particular commitment is, the less likely that one will believe the dispute to be one of reasonable disagreement, rather than simply the other side making a profound moral error.

Indeed, I think this gets at a large part of the discomfort over Salaita's hiring -- that functionally in hiring Salaita they're saying (at least in part) that viewing anti-Semitism as an honorable calling is a valid, legitimate position in the constellation of academic debate, just one of many positions that we might have political disagreements about. That judgment is a concerning one. Whether or not a professor could get hired if she had written that "Hamas has made Islamophobia something honorable" or "Louis Farrakhan has made racism something honorable", I'd certainly hope that she wouldn't be -- that we would view that position as outside the bounds of good legitimate scholarly debate. That distinguishes the decision to hire from the decision to fire -- it is well-known and agreed that not firing an academic for his or her appalling opinions does not signal any endorsement of the validity of those views. By contrast, making the affirmative step of hiring an academic inevitably contains some such endorsement. Consequently, one has to wonder how it is that viewing anti-Semitism as "honorable" rather than "horrible" for the past 65 years has come to be a position smart, well-connected academics are willing to endorse.

So on the one hand, if Salaita had written this after already having been hired at Illinois, it would be both protected by academic freedom and abhorrent. If the hiring committee had decided they didn't want to hire him because they didn't think viewing anti-Semitism as "honorable" was up to their standards of merit, they'd be equally justified (and right). Salaita is somewhere in the middle given that he had been offered the job but had not yet formally gotten upper-administration approval; but I'm inclined to agree that this was too late. It is well-known that this approval is pro forma; like Salaita I too announced my departure from my prior job before getting final approval by the Chancellor (or whoever) for my position having relied upon the offer from the folks at the law school. Nobody views the chancellor's approval of the hiring decision as an endorsement; it is a rubber-stamp. That's why anyone inside the academic community views this as having taken something away from Salaita, which in turn raises academic freedom concerns. And since, to reiterate, racist, sexist, and anti-Semitic views are as protected by academic freedom as any other, this should in no way stop anyone from recognizing the anti-Semitism in Salaita's writings.

Long story short -- academic freedom protects anti-Semitic statements such as the claim that anti-Semitism has become "honorable." Viewing that statement as anything other than an abhorrent view that is nonetheless protected by academic freedom is frightening. That people on both sides of the debate over Salaita's hiring continue to conflate these two concepts blurs both of these important conclusions.

UPDATE: The Illinois AAUP committee on academic freedom has released a statement supporting Salaita. It's mostly unobjectionable, but it does fall into the trap I outlined above. Salaita's statements were less a "plea to end the violence" so much as to redirect it ("Jeffrey goldberg’s story should have ended at the pointy end of a shiv."; "I wish all the fucking West Bank settlers would go missing" -- said in the aftermath of the kidnapping of three Jewish teenagers in the West Bank who were later found dead). And the end paragraph, which expresses concern "if a university would void a contract of a professor exercising a right of citizenship in protesting actions of another country that much of the global community including the U.N. Secretary General and even the U.S. State Department have found 'disgraceful,'" is another entry in the long history of conflating everything from "anti-Semitism is honorable" to tactical critiques of military operations into an indistinguishable glob known as criticism of Israel.

None of which alters the broader point -- but again, I don't know why it is so hard for people to defend academic freedom without affirmatively arguing that the speech in question is actually great. That's not what academic freedom is about.