Does the latest report on “Principles Against Intolerance,” written by top University of California officials, offer a balanced compromise that would protect Jewish students while safeguarding free speech?
Or would it potentially chill free expression on campus and therefore violate the First Amendment?
These are the questions being debated since a working group of members of the UC’s Board of Regents released its latest draft statement on March 15, ahead of an expected vote on March 23 in San Francisco. The proposal was created in response to a series of anti-Jewish and anti-Israel incidents on UC campuses since 2014.
The report begins with the assertion, “Anti-Semitism, anti-Zionism and other forms of discrimination have no place at the University of California,” a statement that quickly drew both praise and sharp criticism.
“It’s not perfect, but we feel that it’s an excellent compromise, and it’s actually going to serve Jewish students very, very well,” Tammi Rossman-Benjamin, a UC Santa Cruz lecturer and a co-founder of the AMCHA Initiative, a pro-Israel campus watchdog said of the report.
Rossman-Benjamin and a coalition of other Jewish and pro-Israel groups—including the Jewish Federations of North America, Hillel International, the Anti-Defamation League, the Israeli-American Council and StandWithUs—have called on the regents to endorse the report in its entirety and commended the working group for specifically condemning “anti-Zionism” and “anti-Semitism.”
However, others argue that whether or not the “Principles Against Intolerance” explicitly give administrators the power to censor or punish anti-Zionist speech, its message of disapproval could chill debate on what are supposed to be intellectually open campuses.
A diverse group of opponents includes not only pro-Palestinian and left-wing groups, including Students for Justice in Palestine and Jewish Voice for Peace, but also First Amendment experts, such as the Foundation for Individual Rights in Education (FIRE) and UCLA law professor Eugene Volokh, a right-wing libertarian who runs the Washington Post’s popular blog “The Volokh Conspiracy.”
Last October, Kenneth L. Marcus, the President and General Counsel for The Louis D. Brandeis Center, an independent, public-interest advocacy organization, met privately with the working group in Los Angeles. On March 18, Marcus said he’s happy with the group’s final draft, but stressed that every component of it—the “contextual statement,” “observations” and “principles against intolerance”—must be adopted as a whole for it to have meaning.
“If the regents really want to make a difference, they need to adopt the entire work product of the task force, especially the contextual statement. Without that the Statement of Principles Against Intolerance is not really helpful,” Marcus said. “I do think it will make an extremely important contribution— especially in the one sentence that is gaining the most attention,” he said, referring to the opening statement.
“I think the regents are flat wrong to say that ‘anti-Zionism’ has ‘no place at the University of California,’ Volokh, a supporter of Israel, wrote on his blog. “I think such statements by the regents chill debate, especially by university employees and students who (unlike me) lack tenure.”
On March 18, Volokh said in an interview, “The university is supposed to be an organization where people feel free to express their view, but now the bosses say, ‘Well these views have no place at the university.”
Volokh suggested that had Palestinian and Arab students lobbied the regents to criticize speech “denying Palestinian claims to have their own state,” Jewish and pro-Israel students might have opposed such a measure.
“Would we say, ‘Oh well that’s just the regents saying that in the preamble? There’s no actual policy saying you’ll be fired or expelled for that?’ Well, no, I think we’d say the administrators are going to get the message and others are going to get the message,” Volokh said. “We should have exactly the same reaction when the university is saying the same thing about anti-Zionism.”
The California Scholars for Academic Freedom, a group of academics who raise awareness of potential threats to First Amendment and academic rights, released a statement calling on the UC regents to reject the portion of the report referring to “anti-Zionism,” arguing that including it would “allow for the development of policies throughout the UC system that seek to suppress political viewpoints that are rightfully part of public discussion and debate.” The group also asked for a clear distinction between anti-Zionism and anti-Semitism and asserts that the two are not the same.
On the other side, the report’s supporters, among them Max Samarov of StandWithUs, believe the proposal would not restrict or chill free speech, but, rather, is an expression of the regents’ own First Amendment rights.
“Just like people who want to publicly disagree with Israel’s right to exist and the right of Jewish people to self-determination have the freedom of speech to do that, the UC regents also have a First Amendment right to condemn that,” Samarov said.
Judea Pearl, president of the Daniel Pearl Foundation and a UCLA professor, similarly argues that the regents struck a healthy balance in setting “the norms of civil discourse on UC campuses without infringing on anyone’s free speech.
“Zionophobic and Islamophobic speeches remain uncensored but are visibly marked as ‘unbecoming,’ ” Pearl wrote to the Journal.
AMCHA has documented a dozen or more anti-Jewish incidents over the past two years that have raised alarm bells in the Jewish community, most notably the initial rejection of a Jewish student, Rachel Beyda, for a campus judicial role in February of 2015. At her nomination hearing Beyda was “>blog post on FIRE’s website of whether the line, “Each member of the University community is expected to consider his or her responsibilities as well as his or her rights,” could impact students if administrators determine they did not sufficiently consider their First Amendment responsibilities.
“Are they then subject to punishment?” Creeley wrote.
On Wednesday, the regents will consider policy, and if they approve it, such questions may be answered after it has been implemented by the UC system. The Brandeis Center’s Marcus believes the ultimate impact of the final report, if adopted, will be determined on a campus-by-campus basis, “where they flush out and explain what’s meant here.”
When Volokh was asked whether the report could be challenged in the courts on Constitutional grounds, he expressed doubt:
“If someone were to bring a legal challenge, I think the courts would say there’s no prohibition for us to strike down,” Volokh said. “I’m not saying it’s unconstitutional. I think it’s bad.”