Generosity for Thee....

Jonathan Haidt has a post in the Heterodox Academy arguing, in response to student protests at Yale and other colleges, for "generosity of spirit." This is how he characterizes this virtue:

Philosophers often advocate what they call “the principle of charity.” It means that in any discussion we interpret others people’s statements in the way that makes their argument strongest, not weakest. We give them the benefit of the doubt, rather than trying to twist their words to support the ugliest possible implications.

I don't have any intrinsic objection to this. In fact, I rather like generosity of spirit in this respect. I think we should try to encounter other people on their strongest terms, and that we shouldn't reduce conversation into a search for bad motives.

But I do have to ask if this is a virtue Haidt embodies when it comes to his "others." For when Haidt talks about the current generation of students and the grievances they air, he does not seem particularly generous. They are presented as spoiled millennial brats, perpetually making mountains out of molehills, incapable of grasping basic concepts regarding freedom of speech, willfully ignorant of what "real" oppression is, unable to handle any dissonance to their worldview penetrating their perfectly serene and coddled "safe spaces", and so far removed from  civilized modes of reasoning that they've created an entirely new "culture of victimhood" to inhabit. Is this "generosity of spirit"? Is this an genuine effort to "make[] their argument strongest, not weakest"?

We can push further to see a more fundamental problem in Haidt's outlook: it comes with an implied "unless the argument is about racism, sexism, or other like -isms" exception. These arguments are viewed as inherently violative of a "principle of charity"; simply by invoking them one steps outside the boundaries of "generosity of spirit" and therefore forfeits the right to receive due consideration. This is what allows such claims to be responded to in ways that, on the face of it, in no way can be harmonized with principles of charity. I tried to make this point in my Playing with Cards article:

The bad faith charge [leveled against discrimination claimants] ... is precisely an allegation that the claimant is engaging in a deceptive, malicious, and opportunistic game designed to browbeat her interlocutor into agreement. And contrary to the respondents’ allegation, this same sin is not (or at least not necessarily) fairly attributed to those who claim discrimination. A claim of racism, sexism, or anti-Semitism need not come attached to any assertion of insincerity or bad faith. This is because the contours of discrimination are not exhausted by the intentions of the speaker. It is a perfectly valid discursive request to interrogate potential injustices lurking within positions honestly taken and passionately felt. To reduce such inquiry to a mere search for hidden motivations is to dramatically circumscribe justice-talk generally.

Were Haidt serious about applying his generosity of spirit principle evenhandedly, I think he'd arrive at a very different descriptor of what is motivating the student protesters at various campuses. It would concede the possibility that the students are responding to genuine, not overwrought, feelings of alienation and discrimination. It would acknowledge the possibility that they had in fact grappled with the standard academic arguments in the relevant areas, and that perhaps they had endeavored to articulate their concerns within the standard deliberative language and had been stymied. It would not race to the conclusion that they were only acting the way they were because they were sociopathic or sadistic; that they enjoyed heaping angst on others for its own sake or that they are presenting their claims in this particular way because they are too unsophisticated to do so in any other way.

None of this, it bears noting, requires endorsing any or all of the actual stylistic or substantive choices the protesters are making. Indeed, there are quite a few of them I have serious problems with -- I have deep skepticism about the some of the rhetoric surrounding free speech, and as a rule I don't like political discourse taking the form of surrounding a target and screaming at them. This is a tough line to walk: it's what I tried to get at in my Yale reconsideration post. The defect of my original post was not that I failed to endorse particular tactics or conclusions of the Yale protesters, it's that I jumped from "I don't endorse particular tactics or conclusions of the Yale protesters" to "they must have arrived at those conclusions because they're intellectually sloppy." The generosity of spirit, which I tried to embody in the follow-up, would be to explain why I had reservations regarding their positions without relying on an uncharitable assumption that they were simply bad at reasoning for disagreeing with me.

Now, one could charge me with that old paradox of "tolerating the intolerant": I'm saying we must give the student protesters the benefit of charitable interpretation even as they allegedly display no such generosity towards the targets of their investigation. I say "allegedly" because I do not think such ungenerousness is present in all cases; as the quote from my article suggests I think it is quite possible to argue that a given belief or practice is oppressive without suggesting that the holder of it is being dishonest or unthinking in adopting it, and I think frequently the claim that such arguments constitute a personal attack is in fact a defensive move designed to remove such claims from the ambit of legitimate discussion deserving reasoned responses. But certainly, I agree that some of the claims do seem to evince a lack of charity, so no more on that.

Yet even here, note how one-sided the complaint is. After all, the argument of the protesters is identical in structure: "why," they ask, "should we have to 'tolerate' the intolerance of persons making racist remarks or employing crude racial caricatures?" There, of course, the response is to say that liberalism demands that we defeat their bad claims with good ones, and moreover, that we assume that their bad claims aren't simply a matter of irredeemably defective souls but perhaps come from good intentions and good places that can be reasoned with. So it seems a similar degree of "tolerance" should be extended to those students who are, at least some of the time in my view, making bad arguments -- the response shouldn't be to intone portentously about how kids these days don't understand the importance of free dialogue (much less to scream about how maybe they'd like things better in North Korea). Here, too, we could say that bad claims should be met with good claims, even as free speech allows them to make bad claims (as my former professor Geoff Stone rightly observes, it is a bedrock principle of free speech that even arguments demanding the curtailment or abolition of free speech are nonetheless protected by free speech, so long as they stay in the realm of arguments).

Again, it's not that I don't like generosity of spirit or interpreting with charity. I think they're both good values, and I think they're underappreciated values. But they are values whose absence is very easy to see in our adversaries but difficult to recognize in ourselves. I certainly wish that many of the students in question showed more charity towards their interlocutors; but that same principle advises that I should assume that maybe the reasons they're not being so generous in spirit is more complicated than raw defects in character.

Israeli Court Affirms Transgender Woman's Request To Be Cremated

The Forward reports on an interesting and heartening case out of Israel involving a transgender woman's request to be cremated. Cremation is generally prohibited under traditional Jewish law (a prohibition which predates, but was emotionally strengthened by, the Holocaust), but for a variety of reasons some secular or Reform Jews prefer it to a traditional burial. Among them was a transgender woman who requested in her will that she be cremated because she was worried that in a traditional burial her status as a woman would not be honored by her family. As if it to vindicate those fears, the woman's mother sued contending that her "son" was "undergoing a deep mental crisis and was not capable of drawing up a will."

A Jerusalem court, however, rejected the mother's suit and allowed the woman to cremated according to her wishes. This of course seems morally correct and important both as an affirmation of transperson's rights of self-identity as well as a rejection of the notion that such self-identity is simply a "mental crisis."

May her memory be a blessing.

UPDATE: The Israeli Supreme Court just affirmed the lower court decision.

Trading a Vice for a Virtue: A Reconsideration

The post I wrote earlier this week on the Yale controversy has gotten a decent amount of positive feedback. And while I'm grateful, I also am a bit surprised, because -- oddly enough -- I didn't really like that post. I wasn't comfortable with it when I wrote it, I hesitated greatly before publishing it, and I continue to have misgivings about it now. It's not exactly that the takeaways were wrong, but I wasn't satisfied with how I expressed them and there was some hiding of the ball -- even from myself -- on what was motivating me to focus on what I did. And while I imagine some will think that I received some blowback or critical response that is provoking this reconsideration, I can honestly say there was none (though perhaps one would have been deserved). This was internally-motivated, and hopefully gets across better what I want to think about on the subject.

I've noticed in all the (good) articles on this subject, there's a fair bit of "to-be-sure"ing going on, whereby the writer critical of the student protests acknowledges, "to be sure", that racial harassment is a very bad thing when it happens, or the writer defending the protests agrees, "to be sure", that it is inappropriate to call for "muscle" to evict a media photographer. Given these overlapping "to-be-sures", one could wonder what all the fuss is about -- but it's clear the question is on emphasis: is the important issue ingrained racist practices at many of our colleges and universities (with suppression of dissident views a real but side issue), or is the important issue incurious and intolerant millennials (with ongoing racial harassment a real but side issue)? Clearly there is a problem of caring equally here. But on reflection, it's unclear why I should have taken the focus that I did (incurious millennials, while to-be-sureing racial inequities).

One of the arguments I did try to make with some level of clarity was that this entire discussion is ill-served when it is grouped-in as a question of free speech. Kate Manne and Jason Stanley have a very thoughtful article on this point that I largely agree with* noting that for the most part "free speech" is being used opportunistically to privilege particular speech-instances while condemning others that are structurally identical. The Yale controversy, after all, essentially broke down as follows:

1. Yale administrators say that one shouldn't (not mandate that one can't) wear ethnically offensive Halloween costumes (because that's part of being respectful of one's peers on a diverse campus);
2. A Yale dorm master says that they shouldn't have sent that email (because one shouldn't need administrators to make such recommendations and in any event a little bit of offense is not the worst thing in the world);
3. Yale students say that the dorm master shouldn't have made that argument (they find the argument risible, beneath the standards of good argumentation, or not in keeping with the master's mission).
4. Various commentators say that the students shouldn't  have condemned the dorm master for writing the email (they should be tougher, they should be open to diverse views, etc.).

All of this is speech and counter-speech, structurally identical to one another. And moreover, I've been quite consistent in arguing that it is a legitimate move (from both a "counterspeech" perspective and a good citizen perspective) to argue that certain arguments should not be made (the "academic legitimacy" argument), though I've also implied that I think one should be very judicious in making such claims -- there should be a very wide gap between "claims I think are wrong" and "claims I think should be explicitly discouraged from being considered in the deliberative space". My contention was essentially that the Yale students made that gap too small -- and while I still think I'm right about that, there are some serious shortcomings in how I framed it. 

For starters, believing that the Yale students drew the line incorrectly does not necessarily suggest that they simply lacked curiosity about an alternative view -- indeed, it seems overwhelmingly likely that they have thought about this issue plenty and were just tired about having to retread plowed ground again. Potentially, such retreading is nonetheless necessary -- but failure to do so is at least a distinguishable vice from a lack of curiosity. And to the extent I implied that there was a more general failure of curiosity at work here, that seems on reflection difficult to infer as well given that I acknowledged that this email almost certainly did not occur in isolation but rather was the straw that broke the camels back (and of course individual straws look insignificant). On this score, Kevin Drum got it exactly right when he said that "fixating on a single incident like this is as silly as trying to figure out why all those European countries really cared so much about Archduke Ferdinand." Finally, you'll note that this concern about having a strong default in favor of considering arguments qua arguments did not come into play in my assessment of the master's email vis-a-vis the Yale administration email. Why wasn't I also rattled by the idea, forwarded by the master, that it was a bad (not impermissible, but bad) deliberative step for the administration to proffer its ideas regarding what one should (but was not obliged) to do? It's not that there aren't arguments to be had on this score, and I think the master raises a legitimate point when she asks why the students lack confidence in their internal ability to create tolerant norms but do have confidence in the administration's capacity for doing so, but those are significantly more complicated points that seem not to explain the disparate treatment between arguments that structurally adopt the same pose.

So that's the reassessment. But I also think it might be valuable, for me at least, to try to unpack what was going on in my head that was driving my thinking on the matter, the focus that I took and the conclusions that I arrived at. The basic argument -- which I still think is right, though more on why in a moment -- is that while it is certainly not a free speech violation to argue that certain other arguments should not (not cannot, but should not) be made or taken seriously, we should be exceptionally judicious in taking such stands. It's not that they're never warranted (an obvious example is a claim that the earth is flat -- I don't want to ban the view, but I do think it shouldn't be taken seriously. "Black people are scum" would be another), but we should be exceedingly cautious and default strongly in favor of at least listening to arguments and disagreeing with them on their merits.

The salience of that position, for me at that time, came out of a post I didn't write -- one about the objections by some progressives to having Bibi Netanyahu present at CAP. This, of course, occurred in the broader context of efforts to boycott -- or otherwise refuse to listen to -- Israelis more generally, and to me exhibited a true lack of curiosity that was deeply disturbing. There was no chance, after all, that Netanyahu would be (as one blogger put it) "feted like the Queen of England and subjected to no challenging questions." And since I am no fan of Netanyahu, I very much liked the idea that he would be subjected to challenging questions. But it seemed to me that the objections to him speaking were predicated less on the prospect that he'd say something outrageous in response than that he'd say something that was not so clearly off-base -- those who wanted not to listen were afraid that he'd give them something that seemed to warrant being listened to, and thus disturb the much more comfortable presumption that any decision he makes or any position he takes is based on such obviously atrocious arguments that they need not even be considered. More broadly, effort to disinvite him exists as part of a larger cultural moment whereby the very legitimacy of (most) Jews' perspectives -- the idea that this entire outlook can be casually dismissed as having no value, deceptive when it isn't oppressive, distracting when it isn't made in bad faith altogether -- that is deeply worrying to me and really does negatively impact my ability to proceed with confidence in deliberative spaces.

In short, I was in a place where I was keenly attuned to the very real equality risks that can emerge when people try to assert the illegitimacy of given perspectives. As a Jew, I can't completely cheer at these expressions of left-wing activism because I know there is a real and non-negligible risk that in that crowd someone wants to say the whole thing they're fighting against is a Zionist plot, and there is a real and non-negligible risk that if that person gets a hold of the mic and says so the crowd will erupt in cheers. 

But the bigger issue is this: I'd like to say that I take the position that I do -- a strong default in favor of accepting arguments into the deliberative space and against preemptively screening off even those I passionately dislike -- for  "neutral" reasons (respect for pluralism, the importance of experimentation, epistemic humility, whatever). But if I'm being honest, I think a large part of my position flows from my awareness that the check these activists wish to write is one that I'm not entitled to cash. The principle that we should (through social if not de jure pressure) seek to tamp down on speech that alienates people or makes them feel unsafe or disrespected is not one I'm allowed to invoke; indeed, it doesn't seem to occur to people that I'm the sort of person who ever could invoke it

One Yale graduate student (I lost the link) wrote an open letter to the dorm masters which presented his perspective on how white privilege and the perspective of persons of color should have played into this debate. Included in his argument was a pretty strong claim that only the oppressed can truly know the nature of their own experience and thereby they deserve deference when making such assertions. And then turning to the "free speech" claim, he asked the master where their free speech commitment was when Steven Salaita was denied his position at Illinois.

Had that question been directed to me, of course, I could have responded that I was quite explicit in declaring Salaita's academic freedom had been violated. But what I really wanted to say was that Steven Salaita is not your standard-bearer; Steven Salaita is your victim. What, exactly, do you think the Illinois decision was except an assessment that in deriding the legitimacy of anti-Semitism allegations as being worthy of concern (he said he took them with "bemused indifference"), in comparing Zionists to vermin or a pox ("scabies"), in celebrating violence against Jews and wishing more to fall upon them, he was making the space unsafe for Jews on campus? I could lob right back -- where was your epistemic humility about your ability to understand their outlook and what they've gone through? Where was your concern about respecting oppressed peoples' right to name their own experience when you erased their stated concern about anti-Semitism and substituted in a supposed inability to tolerate criticism of Israel? It doesn't even ring a bell. 

Now it's not the case that everyone is a hypocrite here. As I mentioned, despite absolutely believing that Salaita's tweets were anti-Semitic, I still thought his academic freedom was violated -- for me, the free speech issue trumped. And I had a wonderful train ride last year with a colleague who is both far more harsh in her assessment of Israel than I am and more favorably disposed to the "safe space" concept than I am, and she took the exact opposite view: She thought that Salaita's tweets raised serious questions about his ability to foster a safe and inclusive space in his classroom, and therefore was not convinced that the administrators were necessarily unjustified in revoking his appointment. Thus we had the strange experience of the Zionist defending Salaita's academic freedom rights and the anti-Zionist suggesting that maybe the administration had a point in keeping him off campus.

Still, that I think is the exception and not the rule. I have an admittedly deep-seated suspicion of the argumentative line be taken here, and I think it results primarily from the fact that I don't think I'd be allowed to access it. And in this, I'm reminded of Patricia Williams' defense of formal legal rights as against the challenge of Critical Legal Studies professors who'd prefer more informal norms of relations. Williams liked rights not because they were ideal, but because she couldn't count on informal communal norms to be inclusive of her. The thin, threadbare, dispassionate, anemic rights-talk still gave her at least a bare foothold for asserting claims; the rich, casual, everyday modes of informal discourse often times would just casually and informally exclude her. And so it is with my instincts of discourse -- my preference to let as much as possible be admitted to the space of arguments that demand reasoned responses does not come from a belief that most arguments are worthwhile, it comes from a lack of confidence in the institutions -- be they college administrators or public legislators or, unfortunately, idealistic campus activists -- that are tasked with deciding what is drawn in and what is drawn out.

* I have to observe, though, that there is in fact no "hate speech" exception in First Amendment doctrine. This is a widespread misconception, and while I'm not sure from where it derives, it is unfortunate that it was forwarded here.

Illinois and Salaita Settle

The University of Illinois and Steven Salaita have settled their dispute over the former's "unhiring" of the latter, with Salaita to be paid over $800,000 in damages and attorneys fees. Since this looks to be the conclusion of the saga, I'll take the opportunity to one last time state my position: Yes, I think Salaita made anti-Semitic tweets, yes, I think his academic freedom was violated, no, clause "a" and clause "b" should not have anything to do with one another. Academic freedom includes the right to make anti-Semitic (or racist, or sexist, or whatever) statements; Salaita should not have been effectively stripped of his position for doing so; and he was entitled to (and I'm glad he received) a significant cash payout given that he detrimentally relied on Illinois' failure to adhere to basic academic freedom standards.

Things People Blame the Jews For, Volume XXII: High Tuition

College is expensive, and growing more so. Tuition prices seem to trend ever-upward, with no end in sight. Causes are no doubt complex: Bloated administrations, increasingly ritzy amenities, proliferation of niche and trendy centers and programs ... oh, and if CUNY's SJP chapter is to be believed, "Zionist administrators":

Wow. Students for Justice in Palestine at CUNY actually blamed "the Zionist administration" for high tuition: pic.twitter.com/6bZlX1WeU9

— Yair Rosenberg (@Yair_Rosenberg) November 12, 2015

Jews ruining higher education -- it's not just a law school thing any more!

Look, it's not that Zionist mind-control indoctrination rays are cheap -- they're not. But they're the only reason why the Elders of Zion even allow there to be an Engineering Department. So really, folks should be thanking us.

Academic Incuriousity: Not Just a Liberal Problem

Apropos my last post on the Yale flare-up, Max Fisher has a good post at Vox about a similar free speech/safe-space type controversy at William & Mary a few years ago that didn't get anywhere near the attention that Yale's did. Part of the reason, Fisher suggests, is that it was conservatives doing the crying -- crying that a foot-and-a-half tall cross was taken down from a public building, and crying that an allegedly offensive art show played on campus. The result was ultimately the ouster of the college's President.

I remember that controversy well, and I remember that it certainly didn't have the cultural resonance of the contemporary "PC-liberals hate free speech" issues we're talking about today. Indeed, my first thought when reading the recent fusillade of articles denouncing liberal oversensitivity on campus was to marvel at how conservative writers had managed to shift from "campuses are brainwashing students with evil dirty sexy offensive anti-American propaganda that should be banned" to "whiny liberals don't understand that college shouldn't be comfortable" without skipping a beat.

Like Fisher, this is not an apologia for liberal students being similarly close-minded. As I observed in my last post, what we're seeing is not a uniquely liberal vice, but rather a convergence on a bad equilibrium whereby everybody has the right to be epistemically incurious and close-minded (as opposed to just the dominant groups). That's bad, but it's not a specifically liberal bad. It's a far more pervasive and more dangerous problem precisely because it is a vice that now everyone seems to feel entitled to (even as they are appalled to see it exercised by others).

Trading a Virtue for a Vice at Yale

I'm currently reading Jose Medina's truly outstanding book The Epistemology of Resistance. I'm only through the first chapter, but one of Medina's core arguments is that the social position of privilege can (does not always, but can) lead to certain epistemic vices -- for example, close-mindedness or overconfidence. Privileged persons who do not often experience others challenging their views (or, when such challenges do emerge, are assured by other societal actors that these challenges are inconsequential) may be hampered in their ability to self-reflect and think critically about the merits of their own position. Since nothing forces them to engage in such (potentially distressing) behavior, they may simply abstain from it, preferring to bask in the comfortable security of "knowing" that they've got it all figured out. And accordingly, Medina argues, persons under conditions of oppression can (do not always, but can) exhibit certain epistemic virtues -- they may be more open-minded or curious about the world and positions not their own, simply because they have to be. They are not in a position where they can simply not listen to the views of others, they often have to grapple with and be fluent with perspectives and experiences that are different from their own.

Medina is no fundamentalist: he obviously does not think we must be radically open-minded and uncertain towards any and all beliefs we might hold (a position that would lead to epistemic anarchy, if not outright paralysis). Nor is he essentialist: he believes that plenty of oppressed persons can display the vice and plenty of privileged persons the virtue, and he clearly hopes that all of us will strive to do a little less of the former and a little more of the latter. But I worry that we're beginning to see the opposite. Instead of encouraging more virtue -- asking people to emulate the particular epistemic virtues of curiosity often fostered by oppression -- people are asserting a right to the vice. They want the power not to listen, they want to not have to think discomforting thoughts. The equilibrium seems to fall exactly where we don't want it to be.

In a sense, this is unsurprising. Virtues are very often no fun to live out -- that's if anything a cliche --and the virtue of epistemic curiosity is no different. It is uncomfortable and disorienting for one's worldview to constantly be under threat, to never be quite sure if one's views (including passionately-held ones) are on target, to always have to encounter and reckon with voices and perspectives that seem radically alien from one's own. How much nicer is it to occupy that space of privilege -- to not have to endure such challenges, to be secure in one's correctness, to be surrounded by fellow-travelers in solidarity. The virtue is not recognized as a virtue but is recognized as a burden; the vice is not recognized as a vice but is recognized as a comfort.

The recent controversy over Yale students protesting over a college assistant "master's" email critical of administration-promoted suggestions regarding proper Halloween costumes (the master suggested that students should not need or desire the administration providing such "guidance" because they should be able to come to good conclusions on their own; and if in certain circumstances they came to bad conclusions that would not be the end of the world) seems to resonate with this concern. The usual caveats apply: this incident did not occur in isolation, there is a long history of college students making poor choices (itself not the worst thing in the world), no social movement can be perfect all the time, and so on. But nonetheless, the conduct of the students -- surrounding the master and verbally abusing him, seemingly enraged that he might have a different view from theirs, finding it outrageous that one might think his arguments are "worth listening to" (I'm actually less concerned with calls that he resign from his post as master than with the verbal confrontation, oddly enough) -- seemed to be about trading the virtue for the vice. The email in question may be wrong, but it did not seem to be outrageously so, the sort of statement that was so obviously out-of-bounds as to warrant exile from the realm of legitimate discourse. It did not exhibit the markers that should have rendered a lack of curiosity (indeed, a sense of offense towards the idea that one might be curious towards them) about its claims a virtuous stance to take.

So what is going on here? Well, obviously a lot is, and again it is clear that this email alone was not really the critical factor in triggering this outburst. Nonetheless, I think it is possible to understand why these students seemed to frame their claims in terms of their right not to listen. Though Yale students come from a variety of backgrounds and many continue to face significant degrees of oppression (on and off campus), all have at least some privilege simply by virtue of being Yale students. And having tasted that privilege -- experienced how good it feels to just be instinctively, reflexively validated -- it's no wonder that they want more of it. If virtues are stereotypically a burden, vices are often a blast. And there is no reason to suspect that people -- when given a naked choice between living out the virtue or living out the vice -- will typically select the former. In many circumstances, epistemic virtue (like any other) must be inculcated.

Certainly, it is fair to say that it is probably ideal for both camps to move closer to other -- more epistemic confidence for oppressed persons, more epistemic humility from privileged ones -- but that leaves the question of where in the middle the two will meet. People who argue that the claim of marginalized persons to access this place of epistemic security are only demanding what the majority has long possessed aren't wrong -- somebody (I forget who) observed that the conservative freakout over Starbucks' red cups is nothing but a safe-space-style demand that their preferred worldview continue to be the unchallenged default -- but they do overlook that this majority-possessed space is not a virtuous one. The risk is what people will seek out is somewhere that's more on the vice side of the ledger, and that is not a desirable (nor, I'd argue, a sustainable) place to be. Not every college movement that seeks to alter the dialogic norms of the community does this, but some of them do, and the Yale case seems to be closer to a pursuit of the vice than the virtue.

Now, I think in many cases the problem here is misidentified as a "free speech" problem, when often it isn't: it's counterspeech. I've tried to delineate the difference in my posts on academic freedom vs. academic legitimacy (see the latest for links), and while arguably that doesn't apply in the Yale case (where one could plausibly maintain there was intimidation at play), often times people complain about "censorship" when in reality all that's going on is people expressing a contrary  message. The idea that certain ideas should not be socially accepted (so long as social disapprobation is all that's at stake) is entirely consistent with free speech rights. When students say (and do no more than say, though perhaps say quite loudly) "I don't want to listen to this argument" or "I don't think this speaker belongs on our campus", the potential vice in play (and it isn't always a vice) is not censorship, it's a lack of curiosity. This problem -- if it is one (and I think it is one) -- should be addressed on its own terms. And the solution -- whatever it is -- will need to balance the genuine need for bolstering the epistemic confidence of outgroups who are often mistrusted, while preserving the virtues of curiosity and open-mindedness that epitomize an ideal deliberative space.

UPDATE: Please see the follow-up I wrote to this post, which reconsiders some of the critical points and provides additional context.

Great (Israel) Cases Make Bad (International) Law, Part II

Back in July, I blogged on an ICC ruling reversing a prosecutor's decision not to open a case in the Mavi Marmara flotilla incident. Comoros had filed a complaint alleging that the killing of 10 persons aboard the boat during the IDF raid was a war crime; the ICC prosecutor decided that the incident lacked the "gravity" that would compel an ICC investigation (if you're wondering "why Comoros?", it's because neither Turkey nor Israel is an ICC party, but the ship was Comoros-flagged).

The ICC panel's decision ordering the prosecutor to reconsider filing the case was notable in that it united right-wing general Israel-defender Avi Bell and left-wing general Israel-critic Kevin Jon Heller in pretty vitriolic criticism. Both agreed that the rule the panel articulated regarding "gravity" was legally novel and practically unworkable; Bell explicitly and Heller implicitly contended that the decision consequently would have no bearing outside the Israel context (where, it seems, the normal rules never apply). My post above (which links to Bell and Heller's arguments) provides more detail, but put simply there is no way that the ICC can be mandated to investigated ever case alleging roughly 10 killings, and given the identity of the complaining party (Comoros) there is no serious argument that the event was part of a larger "situation" in the Comoros that exacerbates the salience of the incident.

In any event, by a 3-2 vote an appellate panel has affirmed the initial decision ordering reconsideration by the prosecutor. I haven't read the opinion so I don't know if it takes any steps to cure the defects Bell and Heller identified, and I look forward to their commentary. But at first glance, this seems to be a continuation of a very deleterious trend: International law principles surrounding Israel tend to be tickets good for this ride only. And that is a principle that is destructive of international law and wholly incompatible with principled commitments to equality.

Honoring Jesse Choper

Last night, I attended a retirement party for Jesse Choper, the Earl Warren Professor of Public Law at UC-Berkeley. Jesse has been an active teacher for a remarkable 54 years, starting at the University of Minnesota in 1961. He moved to Berkeley in 1965 and has been here ever since (including a stint as Dean from 1982 - 1992). So while Jesse is known around the country as one of America's preeminent constitutional law scholars, it is no surprise that here in the Bay Area he is known more simply as "Mr. Boalt".

Of the literally hundreds of people who came out for Jesse's retirement party, it is probable that each of us could have given a meaningful personal toast. Of course, in that group of luminaries I rank pretty low in the pecking order. But here on the internet I can give my own toast, which while probably just a drop in the bucket of accolades Jesse has received throughout his career, is nonetheless the very least I can do.

Of all of Jesse's colleagues, I think I can say with a fair amount of certainty that I am the latest. I arrived a Boalt last year as the inaugural Darling Foundation Fellow in Public Law, and I had the tremendous privilege of being the coordinator for Jesse's final class -- a workshop in Public Law that focused on the Roberts Court. I got to know Jesse throughout the term as we selected the list of invitees and later attended the weekly talks, and so was able to experience first hand many of his noteworthy quirks. Not only does he drink white wine on the rocks, but he does so with such regularity that -- upon arriving at Saul's (our local Jewish deli) -- he need not say a word before a glass has already reached his table. I can also verify that he is a singularly happy figure -- on his daily strolls to the faculty lounge for coffee, I do not believe I've ever seen him without a smile on his face.

Since this was to be Jesse's last class, and since I had known him all of a few months, it would have been easy and understandable if I had faded into the woodwork of the thousands of students, staffers, and colleagues Jesse has worked with over his career. But that did not happen. Jesse took an immediate interest in my work and my career, offering to read and comment on drafts and put in calls whenever one of us spotted an open position. Perhaps more meaningful, he also asked me to read and comment on his work. Admittedly, this was quite intimidating, given that I was not even on the tenure-track and Jesse has literally 50x my experience in constitutional law. But it was also quite important to me. Many senior faculty members are aware of and cheerfully fulfill their obligation to comment on their junior colleague's work, but it doesn't always occur to them to run their own ideas past the juniors. Yet an important part of growing into this role and no longer seeing yourself as an impostor whose law school grades and mastery of big words duped a few people into giving you a faculty office is getting the sense that others value your opinion too. That Jesse Choper -- author of Constitutional Law: Cases, Comments & Questions and Judicial Review and the National Political Process -- wanted my opinion on his work was possibly the most important thing he could have done to make me feel like a true colleague.

Even having been here for barely over a year, it is difficult to imagine Berkeley without Mr. Boalt. There is a part of me that is very skeptical that we'll see much of a drop in Jesse's frequent strolls to the faculty lounge. But regardless of whether he's in the building or not, it is evident that his spirit has penetrated the law school deeply. I was privileged to have worked with him, I am privileged to know him, and I look forward to continuing as his colleague and friend well into the future.

The Signal and the Noise in the "Zionist" Boycott Case

Steven Levitsky and E. Glen Weyl have a much-talked about piece wherein they explain why they, self-described progressive Zionist Jews, are boycotting Israel. Like Michael Koplow, who already wrote a very thoughtful critique at the Israel Policy Forum, I have no interests in ad hominem. I will take their premises -- that they are proud Jews, that they are Zionists, that they are doing this because they love Israel, that they oppose the broader BDS movement (the feeling is apparently mutual, a fact which they trumpet) -- as given. These are not the problem here. The argument fails on its own terms, and fails in rather dramatic fashion.

Basically, Levitsky and Weyl's case runs as follows:

(1) The status quo of Israel occupying the West Bank is morally untenable. Only a solution -- one-state or two-state -- where Jewish and Palestinian self-determination rights are respected is morally acceptable.

(2) Israel, at least under Netanyahu, is not credibly committed to changing this status quo.

(3) The only feasible way to change Israel's mind and cause it to (try to?) change the status quo is through a full-scale economic boycott and the removal of all governmental aid to Israel. A boycott solely of settlement products would be insufficiently coercive so as to force Israel to change its positions.

(4) Therefore, they support "refusing to travel to Israel, boycotting products produced there and calling on our universities to divest and our elected representatives to withdraw aid to Israel [u]ntil Israel seriously engages with a peace process that either establishes a sovereign Palestinian state or grants full democratic citizenship to Palestinians living in a single state."

There are also two elements of their argument which might be thought of as riders:

(5) They concede that the boycott does impose a double-standard on Israel vis-a-vis other nations with worse human rights records, but contend that this discrimination is reasonable in their case because they care more about Israel's future than that of other countries.

(6) They concede that many other boycott proponents do not care about Israel and in fact may actively wish it and/or Jews generally harm; they do not join or endorse those people.

The first part of the argument I accept. The second is contestable but certainly plausible (I have no significant faith in Bibi's commitments here, though I'm not wildly optimistic about Abbas either). I'll mainly focus on the third and fourth elements and the riders. And, since providing personal biographical disclaimers is apparently a prerequisite to these sorts of posts, I'll say that I too am a progressive Zionist Jew who deplores Bibi, finds the occupation morally intolerable, thinks Israel should withdraw from settlements immediately (indeed, supports a general unilateral withdrawal), and whose views on Israel are most closely approximated by Ameinu's Third Narrative project.

To begin, Levitsky and Weyl are clearly making a consequentialist argument for the boycott -- supporting it because they believe it will lead to a more just state of the world. This is in contrast to another reason one might support a boycott of a state: that it is proportionate and just punishment for particular wrongs. Levitsky and Weyl implicitly disclaim this when rejecting a "mere" settlement boycott; their rationale is purely of the "will it work" sort (#3). Such considerations also come into play in their response to the "double-standard" objection (#5), they concede the critique but argue that it is acceptable in their case because their motivation is to make Israel specifically a better place (as opposed to reasoning from some general conception of "justice" and "punishment" across all states). So basically, we can appraise their argument based on whether they're right that the likely impact of a boycott movement is to create a better state of the world -- a situation wherein both Jewish and Palestinian rights are respected. The likely consequences of a boycott is an issue I discussed a half-dozen years ago in my "boycott outcomes" post, and I won't rehash those points here. I am curious, however, as to the extent to which they did seriously consider other options for improving the state of progressive politics in Israel and Palestine (e.g., supporting OneVoice or other like grassroots initiatives). I can't speak to the authors personally, but in my experience the people who say they see no alternative but boycotts have rarely invested significant time thinking about alternatives.

Before moving forward, I want to pause and note the oddity latent in their "double-standard" discussion: if the reason the double-standard is okay is because they (Levitsky and Weyl) "love Israel", the implication is that persons who don't love Israel can't boycott (as for them it really would be nothing but raw discrimination). That's a perplexing conclusion, and one I doubt that the authors really are willing to adhere to. Koplow does a good job exploring this problem, so I'll just say here that it emphasizes one of the key arguments I'm going to make below: that irrespective of whether they have shared motives or not, Levitsky and Weyl's argument relies on making common cause with persons whose desires are not to create a better state of the world (as understood by the two of them) and who are in all likelihood far better positioned to actually dictate the expressive meaning of a boycott effort.

In any event, the sequence of events Levitsky and Weyl hope to see happen is that a bunch of people boycott Israel in order to exert pressure that will change the status quo vis-a-vis the Palestinians; Israeli policymakers feel the pinch and adopt policies desired by Levitsky and Weyl; and then the conflict is resolved and the boycott dissolved. That middle step has a big problem, which is that the authors fail to explain why Israeli policymakers will be responsive to the expressed desires of Levitsky and Weyl specifically as against other boycotters who -- by their own admission -- are seeking to send a very different message and have very different objectives. One of the central consequentialist arguments against the boycott movement is the contention that it will make Israel more reactionary -- more distrustful of outsiders, more prone to viewing itself as under siege, more convinced that the wider world is intent on its destruction and that it can only rely on itself and its own instincts. The response to a boycott depends on the message a boycott expresses, and Israel's reaction will no doubt be very different if the message it hears is not "we want the best for you, but we'll boycott until you negotiate in good faith to create a Palestinian state" but "we'll boycott in order to weaken Israel and ultimately eliminate Israel," much less "we'll boycott as a first step in eventually sending the Jews back to Auschwitz where they belong." It is amazing that the authors seem to take as a given that it is their preferred message that will come through, when they admit that other boycotters are saying very different things that would provoke a very different reaction.

And this is where the claims that the authors are not signing up for the BDS movement fall apart -- not because they secretly share the same motivations, but because their entire program depends on leveraging the BDS movement proper to make their own boycott sufficiently expansive so as to compel an Israeli response. The whole reason why Levitsky and Weyl don't see themselves as two cranks yelling at clouds, but actually engaged in a potentially consequential political project, is that it is not just them but all these other people boycotting Israel too. But it is "all these other people", not Levitsky and Weyl, who will dictate the message sent by the boycott campaign. The only function of Levitsky and Weyl will be to boost the signal of the BDS movement as a whole; their idiosyncratic expressive desires won't come across and won't dictate Israel's response. Robert Farley's remarks on the precarious nature of "sending a message" in foreign policy (a critique he's thoughtfully applied to Israeli military action) apply here too: signals aren't always unambiguous, signals aren't always interpreted as they are meant to be, the meaning and impact of signals are dependent on many factors other than the raw intention of individual signalers -- and all of this is exacerbated when one is but one faction (and a relatively small faction at that) of a larger social movement.

And on the ambiguity of signals, consider a very important one: what Israel must do in order to end the boycott. The language is very fuzzy as to whether Israel must simply "seriously engage[] with a peace process" that is geared toward ending of Palestinian disenfranchisement (in either one- or two-state form) or that the boycott shall persist until an actual agreement is reached and implemented. The latter, of course, is not entirely in Israel's hands -- it creates a serious moral hazard problem for Palestinian leaderships who themselves would be given an incentive to negotiate in bad faith (or not at all) in order to further weaken Israel's international standings and extract more and more extreme concessions. This is particularly problematic if one thinks (as I do) that one of the most frustrating aspects of this conflict is how Israelis and Palestinians seem to alternate negotiating in bad faith -- when one party is willing to come to the table, the other dances around; then a few years later they switch roles. Certainly, one Israeli complaint I think has resonance is that Palestinian actors don't really want a negotiated settlement because they think time is one their side. Levitsky and Weyl purport to agree -- they think that demographic and political trends are steadily weakening Israel's position -- but their solution seems to exacerbate the problem.

But at various points the authors suggest that it's the former they have in mind (Weyl observes that he didn't boycott Olmert, for instance, implying that if an Olmert-type came to power he'd end his boycott, and he agrees that a just solution is not entirely in Israel's hands). The problem there is that "good faith" is very subjective. Years ago (discussing proposed boycotts of Arizona), Amanda Marcotte identified one key element of a successful boycott as having specific rather than vague goals. "Ending the segregation of Montgomery buses" is a specific goal. "Negotiate in good faith" isn't. It strikes me as very implausible that there might be a circumstance where Israel tries to negotiate, it doesn't succeed, but Levitsky and Weyl (much less their cohorts) agree that they made a "good faith" effort and agree to end their boycott. For example, what of Bibi's settlement moratorium, which was not met with serious Palestinian efforts to hammer out a deal? At that historical moment, would Levitsky and Weyl flip sides and boycott Palestinian institutions as punishment for Abbas' bad faith? Or was that not enough of a step by Bibi (how on earth is this measured, and at what level granularity?). At the very least, though, they should be explicit about which position they're taking -- for accountability reasons if nothing else.

From a social movement perspective (which is what I study), Levitsky and Weyl's position rankles because it is really reminiscent of a type of political advocacy (probably found among all sorts but which I personally associate with conservative libertarians) wherein people join hands with a bad campaign but disclaim any responsibility for the consequences because they personally prefer an entirely marginal and politically-irrelevant third option. These are the people who draft paper after paper urging the abolition of the minimum wage and then when asked whether they care at all about the poor say they actually support a guaranteed minimum income. The latter being a complete non-starter, the effect of their advocacy is to foster a world with no minimum wage and no guaranteed minimum income -- which they must know (even if they are being entirely above-board in describing their personal policy preferences). Ditto those who fought tooth-and-nail against a right to gay marriage and then said "actually, I think the government should get out of marriage altogether". The effect of their advocacy is entirely to support the mainstream anti-gay marriage position and does nothing to move us closer to a "government-out-of-marriage" world. Again, one need not think they're lying; their personal motivations are irrelevant. And so here, the author's support of a "Zionist" boycott of Israel is so far removed from any politically-viable position that their claim of separation from the general BDS campaign rings hollow -- the only thing it conceivably could do is bolster the effectiveness of that movement, one which (as they acknowledge) has no kindly desires regarding the future of Israel or the self-determination rights of the Jewish people. It's a sort of arrogance that enables one to engage in social movement politics while ignoring the "social"; of course the Israeli government will interpret a massive, wide-spanning boycott as embodying the precise cluster of idiosyncratic meanings that we intend it to.

While not directly on point, Eugene Volokh's superb Harvard Law Review article "The Mechanisms of the Slippery Slope" is essential reading on the in-practice dynamics of social reform and how in many circumstances seemingly intermediate positions can glide forward into more extreme ones that the promoters of the initial reform would have found repugnant. In particularly, his discussion of attitude-altering slippery slopes (especially the extreme-aversion variety) provides important insight into understanding why promoting boycotts of this sort will likely have the primary effect of amplifying the nastier and more destructive iteration of the boycott campaign the authors claim to deplore. One thing that's become very clear about boycotts of Israel is that the train has no brakes: targeted boycotts of settlements leads to general boycotts of firms, to academic boycotts of universities, to personal boycotts against individual artists or scholars, to (as in South Africa) unadorned discrimination against Jews qua Jews. At every point some people no doubt would like to disembark -- but many others get onboard, having come to realize that such practices are now inside the bounds of ordinary political action.

That's the basic consequential case against Levitsky and Weyl's position: The message they want to send won't come across, the message that will come across won't have the impact they desire, and their signing on to the general idea of a boycott will provide aid and sustenance to a very bad movement while doing nothing to realistically promote the viability of their extraordinarily idiosyncratic "Zionist boycott" position. Yet there is a non-consequentialist observation that needs to be made as well. Levitsky and Weyl base their entire argument on the belief that a boycott will cause Israel to change its policies in ways that will create a new state of the world ideologically amenable to Levitsky and Weyl. As argued above, this is a tenuous assumption -- there's no reason to think their idiosyncratic preferences will be heard, much less dictate action, compared to the very different preferences expressed by the median boycotter. But let's think about this argument on its own terms. Levitsky and Weyl use soft language -- boycotts will "shape" Israeli strategy, they will "induce" it to think differently. But what they mean, or they hope to mean, is that it will force change. Theirs is a proposal of coercion -- as they put it, "The Israeli government could not sustain its foolish course without massive U.S. aid, investment, commerce, and moral and diplomatic support." And let's not mince words: the implied "or else" here is that "or else they'll collapse and their Jewish population will run a significant risk of being subordinated, expelled, or worse." It's that veiled threat that is will compel (or "shape" or "induce") the desired change, (On this score the authors engage in one of my favorite sleights of hand: dismissing Israel's security concerns by noting its significant military advantage while simultaneously urging that all military assistance be cut off and an arms embargo be imposed).

I've written before about how I suspect much of the antipathy non-Jews have towards Israel relates to its status as Jewish institution which -- sometimes -- does not have to listen to non-Jewish demands. Throughout most of history, when non-Jews had an objection to Jewish behavior, Jews pretty much had to assent immediately. Israel, being an extraordinarily anomalous instantiation of Jewish sovereignty, doesn't have to, and this is infuriating to persons who view power over Jews as part of their cultural patrimony. Interaction between moral equals generally implies that disagreement will be overcome by reason or suasion, not diktat; if I don't like how you're behaving, I try to persuade you to act differently. But then, Jews were never seen as a moral equals in this sense. The boycott movement is a particularly brute effort to reestablish the historical status quo wherein Jewish behavior wasn't a matter of Jewish choice, but of Jewish subordination. If they won't alter their behavior voluntarily, well, since when did Jews ever have a right to volition?

Now here Levitsky and Weyl certainly will object that by talking about non-Jews exercising coercive authority over a Jewish institution in the context of critiquing their column, I'm acting as if they are not Jewish (that they're the non-Jews seeking dominion over Jewish lives). But that misses the point. Levitsky and Weyl are absolutely Jewish -- but once again, they're not the ones who will be holding the leverage in the event their boycott movement succeeds. It will be a non-Jewish institution that is in a position to make demands, whether that be the United States, or the EU, or the UN, or Israel's Arab neighbors, or the PA, or PACBI, or someone else. It may be the case that a boycott will successfully force Israel to listen, but there is no plausible universe where a boycott will force Israel to listen to progressive Jews. The best progressive Jews could hope for is that whatever non-Jewish third party which ends up holding the cards will exhibit policy preferences mirroring those of progressive Jews. History suggests that this is a dim hope.

Levitsky and Weyl have indicated that they've had many persons lob personal attacks that often challenge their honesty or even their authenticity as Jews. So I want to stress again that none of the arguments I make in any way deny the sincerity of the position Levitsky and Weyl promote, much less their standing as Jews. Indeed, a key argument in my scholarly work is that there must be space "to interrogate potential injustices lurking within positions honestly taken and passionately felt." I think their position is fundamentally unjust towards Jews, but that doesn't deny that they are Jewish-- any more than Charles Jacobs ceases to be Jewish when he makes unjust comments about how the liberal character of the vast majority of Jews proves that we suffer from a "cognitive infirmity". And so the problem with Levitsky and Weyl's case has nothing to do with hidden motives or Jewish identity or anything like that. The problem isn't one of bad moral character, it's one of bad moral reasoning and bad social prognosticating. Their view doesn't take seriously Jewish subordination, doesn't take seriously the realities of expressive social action, doesn't take seriously the signaling effect of a boycott of Israel, and in practice reinscribes the historical norm of anti-Semitic domination. Those are failings enough on their own.

Gerald Kaufman's Superstanding

I've talked before about the idea of "superstanding", a term borrowed from Derrick Bell. Superstanding refers to the idea that while, in general, outgroups are taken to be untrustworthy exponents of their own experiences (they lack the "standing" to demand redress of their claims), in cases where an outgroup member speaks against his or her own, that person is given enhanced credibility and is seen as especially authoritative.

Gerald Kaufman is a British Labor MP, as well as a Jew. His opinions on other Jews in government are not exactly salutary. But look at how he phrases it:

"I’ll tell you (why) [the British government is allegedly becoming more pro-Israel] because I can tell you in a way which perhaps nobody else in this room can tell you. It’s Jewish money, Jewish donations, to the conservative party as in the general election in May, support from the Jewish Chronicle, all of those things, bias the conservatives,"

The emphasis is my own. This was a speech a Palestinian solidarity event, and so it's hardly the case that Kaufman's claims would be met with shock and surprise by the audience ("It had never occurred to me that it was the Jews' fault!"). Kaufman's entire point, though, is that he can say those words that the audience desperately wants to hear, because he's Jewish, and therefore is especially entitled to warn of a massive Jewish conspiracy responsible for setting British governmental policy. See also this post on a pair of anthropologists writing under a Jewish pseudonym to urge Israeli anthropologists be boycotted.

The related concept, of course, is the asajew, whom you've met if you've ever heard someone portentously begin a paragraph with "As a Jew ..." before proceeding to blast their fellow Jews as evildoers. It's a better replacement for the term "self-hating Jew", which is needlessly inflammatory and in any event usually inaccurate. The problem with someone like Kaufman isn't that he hates himself -- clearly he likes himself just fine. It's all the other Jews he has a problem with. And how fortunate for him, and all those who eagerly lap up his words, that he is blessed to be a Jew and thus perfectly positioned to point out the malignant nature of his coreligionists.

La Foule, C'est Moi

The Washington Post has a fun article about how members of the far-right Freedom Caucus who have agreed to back Rep. Paul Ryan's speakership bid are now in the unfamiliar position of being assailed as "RINOs" and "traitors" by their own constituents. You know, the ones they spent the last few years whipping into a frenzy about how the vast majority of Republicans are "RINOs" and "traitors"? Anyway, the whole piece is good, but my favorite part is definitely is the concluding question asked of Rep. Ken Buck (R-CO):

Asked Thursday if he expects pitchforks back home, Buck said he did not: “I’m the guy with the pitchfork.”

"Am I worried about the blindly enraged, braying mob? Hell, I'm part of the blindly enraged, braying mob!"

Academic Freedom vs. Academic Legitimacy: Williams College Edition

Williams College has a group called "Uncomfortable Learning", which "aims to encourage students to understand and engage with often provocative and uncomfortable viewpoints that oppose perceived popular opinions at the College." They invited a Suzanne Venker, a prominent critic of feminism and feminists, to deliver a lecture entitled "One Step Forward, Ten Steps Back: Why Feminism Fails". Many students protested the decision, and the organizers canceled the lecture.

I read the article, and was actually very impressed, because what I saw was students living out the distinction I drew in my Academic Freedom versus Academic Legitimacy article (previously blogged about in reference to Steven Salaita, the University of North Carolina, and the Anti-Vaccination Movement). Take a look at what the student protesters said:

Emily O’Brien ’18 created another Facebook event, “One Step Forward and We Keep Going,” on the same day in order to organize protests to the talk.

O’Brien emphasized that the goal of the protests was not to have the event shut down, but rather to express dissent from Venker’s ideas. According to her, many protestors had planned to attend the event and to engage with Venker during the question-and-answer session.

“The point of the event was not to censor her beliefs,” said O’Brien. “It was our rightful emotional and political reaction to something that has been harmful to many groups of people.”

Sam Alterman ’18 helped organize the protest and participated in discussions on both Facebook event pages. He said that the protestors were not seeking to censor Venker but rather disagreeing with the decision to provide her with a platform.

“No one has asked for her writing to be blocked on Purple Air [campus internet],” he said. “We were dissenting from the idea that she is someone we should elevate to a level where we feel that her point of view is relevant enough and intellectually rigorous enough to bring to campus, associate [the College’s] name with her, and give her money.”
[...]
Gerardo Garcia ’16, another student who was vocal in protests against Venker, said “While I do not agree with the decision for Suzanne Venker’s visit to Williams, I also acknowledge that people are within their right to request for such a speaker. But I also believe we should be able to freely criticize the reasoning for this decision when we invite someone who only spews hate in her talks and in her writing, while providing no concrete evidence to defend her claims. Venker tells women to become subservient to men, while completely ignoring the issues of domestic violence, equality, and much, much more … Personally, I have no patience to learn about a perspective that has no evidence, attacks women and demonizes the queer community.”

The students all make it abundantly evident that they respect the right of Uncomfortable Learning to invite Venker, and were not demanding that the college "ban" her (Williams administrators confirmed that there had been no such request). There were no misguided quotes about "free speech not including hate speech" or anything of that sort. Rather, their criticism was of the idea that Venker represented the sort of speaker whose ideas were intellectually sophisticated enough to be legitimate entries into an intellectual discussion. Presumably this idea is entirely uncontroversial in the abstract: if a student group invited a young earth creationist to lecture on geology, or a Klansman to speak on racial justice, most people would I hope hold the group's decision in contempt (even while not challenging their "right" to do it). As I observe in my article, the decision to invite a speaker to campus signifies something less than "I agree with the speaker" and something more than "the speaker is capable of forming words into grammatically intelligible sentences." The concept of academic legitimacy reflects an appraisal of the boundaries of reasonable scholarly discourse, and it is perfectly fair game to criticize a group for (allegedly) straying beyond those boundaries so long as this criticism does not demand bans or sanctions as a remedy for the breach.

Now, of course, we can argue about whether Venker's arguments really are academically illegitimate or not. The organizers argued that her views are popular ones amongst many segments of the population and that it is therefore worthwhile to engage with them. This has some purchase for me, though it's not a knockout argument (a not-insignificant number of Americans oppose interracial marriage, but it seems like a waste of time to bring in a speaker urging that Loving v. Virginia be overturned). Obviously, the contours of academic legitimacy are open to debate same as anything else; maybe it's wrong to place someone like Venker outside of them (not being familiar with her work, I'm in no position to judge). But so long as that debate occurs as a debate -- free from using the coercive power of the state or college administration to enforce one side's views upon the other -- then academic freedom isn't breached. Say what you will about their substantive evaluations, but as a procedural matter the Williams College protesters did everything exactly as they should, and that's worth commending.

Thank Heaven for Small Victories

So UNESCO, the U.N.'s cultural agency, passes a one-side resolution blaming Israel alone for "“aggression and illegal measures taken against the freedom of worship and access of Muslims to Al-Aqsa Mosque and Israel’s attempts to break the status quo since 1967.” It also labels two Jewish holy sites -- Rachel’s Tomb in Bethlehem and the Tomb of the Patriarchs -- as solely Muslim holy sites. But since the resolution dropped prior language that also would have denied Jewish connection to a third holy site (the Western Wall), it's being portrayed as a moderate position. Because, you know, UN.

Incidentally, the "status quo" on the Temple Mount being referred to is one where Jews aren't allowed to pray there. On that point, I observed the following last week:

The fact that Israel prohibits Jews from praying at the Temple Mount, & the fact that this isn't even seen as religious freedom violation...

— David Schraub (@schraubd) October 16, 2015

...really emphasizes how Jewish subordination is seen as a natural global baseline. I can accept the ban's security rationale as valid...

— David Schraub (@schraubd) October 16, 2015

... but I can't accept that the prejudices which require it, and which deny Jewish religious heritage, are anything other than bigotry

— David Schraub (@schraubd) October 16, 2015

In moderate counterpoint, Rabbi Avi Shafran, the Director of Public Affairs for Agudath Israel in American (an Orthodox Jewish umbrella group), has an excellent column on the issue of incitement and worship surrounding the Temple Mount. One thing he observes is that, under traditional Jewish law, Jews really shouldn't be praying at the Temple Mount (and the Orthodox establishment in Israel has accordingly come down hard against it). It is a nationalist move to do so, not a religious move to do so; and Rabbi Shafran says we should have no sympathy for nationalistic provocations (to forestall "one sided leftist!" comments, the bulk of his column focuses on the inexcusability of Muslim terror attacks purportedly "caused" by Jewish incitement).

It's not that I disagree with Rabbi Shafran. I don't have any desire to pray on the Temple Mount, in large part because I don't have a gratuitous desire to inflame tensions. That said, it is up to Jews to decide how to express their religion, and I don't accept that Jewish religious ritual (even that which is not Orthodox-approved) should in a just world be a per se inflammation of Muslim religious sensibilities.

The sad thing (well, one of many sad things) is that the fact that Jews and Muslims share so many holy sites could, in a different world, be a locus point for unity and solidarity. It is, after all, the sign of a common cultural heritage. Instead, we get comments from Mahmoud Abbas saying that Jews "desecrate the mosque with their dirty feet"; because instead of finding joy in shared history, he finds Jews disgusting and their presence contaminating. This is the incitement driving the current wave of violence: the view of Jews as dangerous contagions.

This is hardly the only driver behind the press to erase Jewish connections their own religious holy sites, of course. The ancient character of these sites is also an embarrassment to those who view Jewish presence as purely colonial in character -- as if Israel came to be when a bunch of Germans with "Stein" in their name threw darts to pick a pleasant-seeming summer home. That there are identifiably Jewish sites predating the 20th century belies this narrative; it presents a different one of a common homeland to which Jews and Palestinians alike have a valid claim of patrimony towards. There are various ways to elide this, none of which are anything but historical travesties, but the end result ultimately is flat erasure -- when Jews claim that they find the Cave of the Patriarch's holy, they're just lying. As they do.

In any event, that UNESCO only considers Rachel's Tomb and the Tomb of the Patriarch's part of the lie, and not the Western Wall as well, is apparently a big concession from them. Thank heaven for small victories.

Quote of the Day: Rawls on the Human Good of Instrumental Value

I've been reading A Theory of Justice. Turns out this Rawls guy is pretty smart. I'm glad he didn't die in the Pacific Theater in WWII:

[I]f some places were not open on a basis fair to all, those kept out would be right in feeling unjustly treated even though they benefited from the greater efforts of those who were allowed to hold them. They would be justified in their complaint not only because they were excluded from certain external rewards of office such as wealth and privilege, but because they were debarred from experiencing the realization of self which comes from a skillful and devoted exercise of social duties. They would be deprived of one of the main forms of human good.

John Rawls, A Theory of Justice (Cambridge: Harvard UP 1971) (2005), p. 84.

This would have fit in great inside my Racism as Subjectification article, which concerns how people "want to be wanted" and consequently how they are damaged when social structures deny them instrumental, objective value -- value in terms of their usefulness to the projects of others. That article is forthcoming in the Berkeley Journal of African-American Law & Policy, and should be coming out ... well, it should have come out months ago, actually. I'm not sure what the hold up is. Maybe I could still slip it in yet.

Two Types of Microaggressions and a Comment on Epistemic Injustice

My friend Regina Rini has penned an excellent column on microaggressions in the L.A. Times. I highly encourage you to read it. Inspired by her work, I wanted to write about two different kinds of microaggression which -- though not wholly separate -- are worth teasing apart. Consider two examples in the gender context:

(1) A female graduate student is constantly addressed by her male adviser through terms like "honey" or "sweetheart".

(2) A female graduate student feels constantly belittled and patronized by her male adviser. He always seems to talk down to her and does not view her as a worthy member of the intellectual community.

The first one is gendered on face, the second is not. This matters.

A skeptic of microaggressions, responding the former scenario, might concede that there is a gendered aspect to the comments but argue that any "offense" was probably unintended and in any event is marginal. "If this is the worst you're experiencing in terms of sexism," the argument goes, "count yourself lucky." This generally overlooks the pervasiveness of the statements. Pretty much everyone agrees that any singular instance of an activity termed a "microaggression" is not itself all that harmful. The problem is in the pattern: as Prof. Rini puts it "over time a pattern of microaggression can cause macro harm by continuously reminding members of marginalized groups of their precarious position." If someone made a weird joke about how my being left-handed marked me as the devil's servant, maybe I'd find it funny or maybe I wouldn't (depends on how good the joke was), but seeing as it would be the only time in the past decade someone had made reference to by leftiness in that way I'd probably shrug it off either way. If I lived in a different society where such "jokes" were routine and there were other broader barriers to lefty-equality and social sentiments promoting discrimination or exclusion of lefties, I'd feel different.

In any event, what matters in this case is that the cards are generally on the table. The operative question is how commonplace the slights are, and that is something the woman in question has directly experienced. I don't want to say there is no room for self-doubt -- we can still ask ourselves "is X number of gender-demeaning statements sufficient such that I am warranted to feel aggrieved" (contrary to popular belief, most women are not like Venus Fly Traps eagerly awaiting a stray call of "honey" to cross their path so they can experience the joy of crying victim). But most of the critical facts are pretty straightforward; indeed, I think it is fair to say that the microaggression critic here is in many cases simply unaware of the raw numbers and wrongfully views each microaggression in isolation.

Now consider the second scenario. Here the skeptic's response would be quite different, asking how we know that the professor's conduct relates to the student's gender? Maybe he's just a general asshole (hardly out of the question). Or maybe the student really isn't that bright (it happens, sometimes). Or maybe there is an other non-gendered factor causing his disdain. Moreover, it's not like male students don't also sometimes feel like their advisers don't respect them or speak to them as equals. Who's to say this instance is gendered?

Note that the problem here is in some ways the opposite of what is going on in the first case. Most people would agree that being derided and degraded by one's adviser (at least without good cause) is itself a pretty miserable experience -- even as a one-off. The dispute is over whether this wrong can be attributed to gender. By contrast, in the first set of microaggressions, the gendered component isn't really disputed, the argument is about whether the actions are pervasive enough so that one can characterize them as a wrong (or at least, a wrong not so trivial so as not to be worth talking about).

In a laboratory, answering the "how do we know" question also would generally be a matter of aggregation: when trying to unpack the roots of hostile conduct that could have both identity- and non-identity related causes, one thing we look for is the variance in how diverse groups are treated. If 75% of women in graduate programs are patronized but only 35% of men are, the evidence of sexism lies in the gap.

But people are not laboratories. Everybody knows, of course, that everybody sometimes receives bad treatment from their superiors. The woman in question may suspect, based on her experience, that it happens to her or her female peers more often than it does to men -- but this is a much more indirect and tenuous observation than would be the number of times she is called "sweetheart". Moreover, even under ideal laboratory settings the fact of the variance is evidence of discriminatory treatment existing, but it provides no hint as to which particular cases are and are not gendered (indeed, it strongly implies that some are not gendered). A woman trying to discern whether her particular experience derives from sexism or her own inadequacies or her adviser being a general jerk or something else will no doubt have to rely on much more subjective elements of her own judgment in making her evaluation.

This would all be tough enough if we respected the judgment of women when making these calls. But we don't, and this is where I think an epistemic injustice comes into play, and, more broadly, why I think the second class of microaggressions poses a particular peril. Epistemic injustice is probably the only reason why the first type of microaggression receives the doubt that it does ("Oh come on, you couldn't be cat-called that often. You're exaggerating!"), but it really rears its head with a vengeance in the latter case. The opinions of women or other marginalized groups -- in general but especially in this context -- are routinely dismissed as unreliable, self-centered, narcissistic, over-sensitive, or just plain nuts. In that world, a type of microaggression which can only be identified at the case-level by reference to subjective judgment is going to slam into the broader social belief that these judgments can't be relied upon. There isn't going to be a smoking gun in these cases, and the general rule is that without said gun marginalized persons are going to be ignored. And this message, trumpeted loud and clear, can knock one's own confidence in one's own appraisals of the surrounding world -- "am I just an over-sensitive whiner complaining about the same slings and arrows every person faces regardless of gender?" (Kate Abramson has a stellar paper exploring this topic through the lens of "gaslighting").

All of this leads to one more oddity I want to raise. Sometimes, I'll be engaging with a person or group that seems to me to be anti-Semitic, but hasn't said or done anything explicit yet -- my instincts are based on suspicions of differential treatment or lack of respect, but I can't outright falsify the possibility that Jewishness really has nothing to do with their positions. And then sometimes the person or group will say something that seems to tear the mask off -- positively quoting from Nazi propaganda or urging schools to expel Jews -- making the anti-Semitism clear and unambiguous. And even though this is a move to a more serious wrong on their part -- it converts a microaggression into a macro- one -- there is a part of me that often breathes a sigh of relief. There -- now that I have that smoking gun, people will believe me (I alluded to this issue in my Innocent until Proven Nazi post). And there is an even smaller part of me that breathes a sigh of relief and says See, you're not crazy after all. Even someone like me, who writes and talks constantly about the injustice of the default assumption that Jews and other minority groups either lie or are deluded when commenting on their own oppression, still has partially internalized the omnipresent social drumbeat that my instincts on anti-Semitism are systematically unreliable.

In short, there is a significant class of microaggressions which are genuinely ambiguous at the case-level. But the problem is not overzealous women, or Jews, or people of color, who seek to trample all over this ambiguity in a race to claim victimhood. What happens more often is that these people will perceive a problem, but be aware of the ambiguity, and know that they can't muster incontestable evidence to prove the problem, and are well aware that their subjective judgment on the matter won't be valued, and so are completely boxed off from any socially-sanctioned mechanism for talking about the perceived wrong or even fortifying their own epistemic self-regard. They are left in a limbo state, trapped with the nagging belief that maybe what everybody says about them is right, maybe they really are just making it all up. And that danger -- compounded by the fact that we lack socially-sanctioned mechanisms for talking about perceived wrongs in cases where there isn't smoking gun evidence -- is a real one and I think in many ways the most serious problem microaggressions pose.

Unilateral Withdrawal: Something Everyone Can Agree On

Unilateral withdrawal is not a popular idea in Israel right now. The dominant narrative is that Israel tried that in Gaza (and Lebanon), and was met with rockets and terrorism from Hamas (and Hezbollah). I'm in what I take to be a pretty distinct minority in thinking that unilateral withdrawal was a success, albeit not a rousing one. Did it lead to peace? No. But it wasn't like there was peace when Israel still maintained an occupying presence. And my general sense is that both Israelis and Palestinians would be better served if their conflict could be reformulated into a standard, not-particularly-remarkable dispute between two sovereign nations; rather than the current ghastly hybrid of independence war cum counter-insurgency cum war of survival cum border dispute cum everything else that we have now. So while I'd be of course very happy if unilateral withdrawal and the establishment of a Palestinian state provided permanent peace and happiness to Israelis and Palestinians alike, the point is that even if it doesn't it's still no worse under that dimension than the status quo, and comes with significant other benefits besides.

Liel Liebovitz has an article in Tablet today that makes a conservative case for unilateral withdrawal from the West Bank along roughly the same lines as I outlined above. It begins with a lot of tendentious hyperbole purporting to show that the sole cause of any Israeli/Palestinian animosity is irrendentist Palestinian maximalism and/or Jew-hatred, and that anybody who thinks that the ongoing occupation or lack of a Palestinian state might also play a role is a dupe. This is nonsense of the same degree and caliber as the idea that the conflict persists solely because of Israeli aggression and oppression as against saintly Palestinian suffers. The truth is, of course, that there is plenty of blame to go around and plenty of bad actors and bad acts on both sides of the equation that play their part in preserving the delightful status quo.

But the point is that, for purposes of this argument, none of that matters. As Liel observes, it is a silly mistake to premise unilateral withdrawal on the idea that it will create a perfectly just, tolerant, and peaceful state of affairs between Israel and Palestine (and within each nation) such that we'll all wonder what all the fuss was about in the first place. I mean, maybe that will be the result -- in which case, huzzah! -- but it's not a requirement for success. If a viable, functioning Palestinian state is created and its first move is to lob rockets at Israeli border towns, well, that's no different than what we have now, except for the fact that it would be definite expression of Palestinian sovereignty and the resulting conflict would be no different from any other armed conflict between sovereigns. Liel's view of the likely outcome of unilateral withdrawal is probably the most cynical one possible, and he still concludes it is better than the status quo of enduring occupation. I'm more optimistic -- I think it might tamp down on violence, though it won't eliminate it, and might redirect anti-Semitic and extremist anti-Israeli tendencies, thought without abolishing them -- so for me it's an even an easier call.

What is impossible to support is the idea that maintaining the occupation, and maintaining Israeli sovereignty over those lands which all agree will eventually be part of a Palestinian state, has any significant positive utility. One can think the Palestinian public sphere is made up primarily of monsters (as Liel seems to), or unblemished martyrs (as his mirrored-equivalents on the left seem to), or the usual in-between mix of saints and schmucks and regular folk (as I do); one can hold any similar range of views about Israelis. In any and all permutations, the case for Israeli clinging onto the West Bank falls apart.

Welcoming Zionish To the Blogosphere

A bunch of UK students have launched Zionish, a liberal Zionist site (more of an online magazine than a blog by the looks of it). A quick browse demonstrates that it is has a lot of potential. So welcome to the internet, Zionish! With precisely zero irony or sarcasm intended whatsoever, I find your thoughts intriguing and would like to subscribe to your newsletter.

Islands of Non-Democracy

The United States is a democracy ... for the most part. If we define, as a basic element of democracy, that all persons permanently under the jurisdiction of the sovereign have equal democratic voting rights, then the United States has some islands of non-democracy: residents of D.C., Puerto Rico, Guam, and various other American overseas territories do not have a voting member of Congress or (except for D.C.) a vote for the President.

This got me thinking: How many other places are in a similar situation? How many non-democratic islands within democracies are there? One obvious potential example is Israel with regard to the Palestinian residents of the West Bank -- the idea of a perpetual occupation threatens Israeli democracy precisely because it seems to promise a permanent state of affairs wherein a chunk of persons under the jurisdiction of the Israeli sovereign lacks equal democratic participation rights. Of course, that raises the question of why this state of affairs is deemed more threatening to Israel's democratic character than the disenfranchisement of Puerto Rico, et al, is to America's democratic character. But I'm poorly positioned to investigate that argument since I think the American case absolutely poses a significant threat to America's democratic character.

But I digress. As I said, what I'm curious about is the prevalence of this state of affairs. I don't know the status of Bermuda vis-a-vis the U.K., or Aruba and the Netherlands, or French Guinea and France. Are they fully represented in the political structures of their sovereigns the same as someone from Manchester or Rotterdam or Nantes? This of course doesn't even get into non-democratic states where nobody has significant voting rights of any kind, but for the moment I'm just interested in the democratic world. Is this normal? Do most democratic states in fact have a few non-democratic pockets? And what are the implications if the answer is "yes"?

Quote of the Day: Hobbes on Reason

"As oft as reason is against a man, so oft will a man be against reason."

-- Thomas Hobbes, The Elements of Law Natural and Politic (J.C.A. Gaskin, ed., Oxford: Oxford UP 1994) (1650), p. 19.

I need to keep writing on motivated cognition so i can use this as an opening epigraph.

Kuwait Airways' Refusal To Board Israeli Passenger Violates Anti-Discrimination Law

In an administrative decision, the Department of Transportation has decided that Kuwait Airways violated federal anti-discrimination laws when it refused to board an Israeli passenger traveling from New York to London. The airline was following policy set in accordance with the Arab League's boycott of Israel, which in Kuwait prohibits doing business with an Israeli national. The punishment for violating this law can include hard labor as well as a fine.

This strikes me as an important ruling (and the letter is well-reasoned). Airlines have a "common carrier" duty which generally obliges them to serve all comers, absent good reason for a refusal (I should note that this narrows the decision considerably, since most private entities are not common carriers and thus the presumption is not that they have to do business with any and all comers absent justification to the contrary). The Department, quite properly in my view, did not consider the airline's desire to adhere to Kuwaiti law as a valid ground for the discrimination because the law itself was "part of a discriminatory statutory scheme." It would defeat the purpose of the general aviation non-discrimination requirement if it could be circumvented by a foreign nation simply making the discrimination mandatory. This alone would probably have sufficed for to justify the DOT decision, but it also notes that this Kuwaiti law in particular -- part of its boycott of Israel -- is specifically contrary to U.S. policy, with several statutes and regulations passed which prohibit giving succor to the boycott in the American context.

Though it does not say directly what type of "discrimination" occurred (the relevant statute, 49 U.S.C. § 41310, prohibits "unreasonable discrimination" generally rather than breaking out specific protected categories), the letter strongly implies that refusal to serve an Israeli-qua-Israeli should be understood as a form of national origin discrimination (the Court explicitly analogized it to racial discrimination, long since outlawed on American carriers). That strikes me as obviously right (as I observed when the case was filed), and we're starting to see boycott moves analyzed under this framework.

While I am generally a fan of this move, I don't want to pretend it provides a clear answer to every case. After all, not every hostile action directed at an Israeli entity could properly be viewed as national origin discrimination anymore than someone boycotting (say) McDonalds for its labor practices could be said to be discriminating against "Americans". Moving forward, I suspect two factors will become essential to judicial analysis appraising the legitimacy of boycott efforts, with a third wild card. The first is their breadth. The Kuwait Airways case is an easy one because it banned Israelis tout court -- even if we can infer that Kuwait's reason for enacting its policy was in some way targeted at the Israeli state (for its policies? For existing? No matter.), by instantiating those objections in such an indiscriminate manner to target every single Israeli national it crosses over from targeted critique to unlawful bias. The second factor, which will be much more difficult to figure out in practice, goes to motive. Motive is the heart of contemporary discrimination analysis, and so in this context the question would be "are you boycotting X actor because it is Israeli, or for some other reason [e.g., because it allegedly violates human rights]." Many Jews suspect that the boycott movement really is motivated by anti-Israel (or often anti-Semitic) beliefs rather than a genuine and universal commitment to the supposed human rights practices publicly given as a justification. Hence, for example, the popularity of the "why don't you boycott so-and-so" response, where so-and-so is an entity in a different company that seems to be implicated in a similar network of abuses. This sort of "comparator" analysis is a valid way of establishing discriminatory motive, but in general motive is going to be difficult to prove. Were I to advise would-be boycotters (and that's a weird thing for me to write), I would suggest that (a) the boycotts must be narrowly tailored to particular alleged abusers, rather than sweeping up Israelis generally (so a campaign against Ahava is more likely to succeed than a general boycott of Israeli academics), and (b) to ensure that one does not only boycott Israeli entities but also maintains a diverse portfolio of boycotts so as to demonstrate that Israeli nationality is not the driving force behind the move.

The wild card is the applicability of America's anti-boycott statutes, which seek to prohibit American entities (including American offices of foreign actors) from boycotting certain foreign nationals at the behest of a boycotting state. This law was specifically passed in response to the Arab League boycott of Israel, although it has been enforced only sporadically. To the extent it is held to apply to the BDS movement generally (which presumably goes to the degree to which the movement is considered to be acting at the behest of a foreign state), all bets are off.

Learning What Should Be Quiet and What Should Be Loud

House Republicans are not pleased with their Speaker-apparent, Rep. Kevin McCarthy (CA), who went on Hannity the other day and bragged about how the Benghazi investigation had "succeeded" by tarnishing the reputation of Democratic front-runner Hillary Clinton. Since, for obvious reasons, Republicans do not like publicly admitting the partisan nature of the record-setting Benghazi investigation, this was a major faux-pas. Which raises the question: How could an experienced operator like Rep. McCarthy make such an obvious blunder?

Some folks are chalking it up to inexperience at being under the microscope of the Speakership (or near-Speakership). But I doubt that -- while it is true that the scrutiny level has been turned up, McCarthy is not some obscure back-bencher unused to political realities. Rather, I think this was a failed attempt to positively signal the Tea Party sorts who were Boehner's bane. McCarthy, like Boehner, is more of an establishment sort of GOPer, and he's had a front row seat as the hard right savaged his boss straight into an early retirement. And what does the Tea Party like to do? It likes to attack! It doesn't cower before the lamestream media or pretend that politics is beanbag or seek to reason with the current socialist regime. They hated Boehner because they saw him as seeking to appease the Democrats rather than fight for conservative values. And so note how McCarthy's statement about Hillary's Benghazi-inspired poll drop concludes: "No one would have known any of that had happened had we not fought."

Poor McCarthy. He thought he was saying something the right had yearned to hear out loud for once, but it turned out that even the Tea Party knows to keep overt partisan political investigations on the quiet side of the ledger. Well, this is a learning process for all of us.

Quote of the Day: Adorno on the Limits of "We're All Just People"

Today's quote comes from Theodor Adorno's Minima Moralia:

The familiar argument of tolerance, that all people and all races are equal, is a boomerang.... [P]roofs that the Jews are not a race will . . . scarcely alter the fact that totalitarians know full well whom they do and whom they do not intend to murder. (102)

Adorno has recently been rising up my list of "theorists whose work I am relatively unfamiliar with, but know I should become more familiar with."

I should say that this quote applies, I think, with equal force in the race context. We can assert until we're blue in the face the biological truth that "race is a construct". That notwithstanding, the racists are fully aware whom they do and do not intend to oppress.