The polarizing response on campus to October 7 and the Hamas-Israel war manifests the toxic poison that contaminates everything that comes into contact with the politics of Israel and Palestine. That includes the university where the politics of Israel and Palestine scramble academic norms of free speech and inclusion. Caught up in the shock of the moment, universities struggle to make sense of the rancid state of the discourse and its impact on the life of the university. Universities confront the legal and moral tension between free speech and non-discrimination and the added moral tension between free speech and “open speech,” i.e. the normative ideal of sustaining open lines of free communication across intellectual and political difference.

The polarizing response on campus to October 7 and the Hamas-Israel war have brought rancor and hatred on campus to a new and high pitch, testing free speech as one essential and core part of the lower-case liberal University. In the middle of mayhem and massacre and war, anti-Zionist activists and supporters say weird and horrid shit that arguably counts as anti-Semitic. Students and faculty frame and “contextualize” and even justify and celebrate horrific acts of terror against Jews and others in Israel, call for the abolition of a UN member nation state, and subject Jews to anti-Zionist litmus tests, creating a climate of intimidation and excluding Jews from participation in campus life. If, in fact, academics have had trouble saying common-sense things about Israel and Palestine and free speech, it is because so many of the most terrible things being freely said now are as unprecedented and shocking as they are simultaneously both protected and in violation of University norms.

THE DISCOURSE

The politics of Palestine on the campus New Left since the 1967 Six Day War has been consistently maximalist and uncompromising in opposition to Zionism. But the bar has moved, as if all of a sudden. Before October 7, academic anti-Zionism used to claim that support for BDS was in support of non-violent resistance, that BDS was itself a non-violent tactic. The claim was never in good faith because the intended goal was always going to be violent. The anti-Zionism of BDS is not simply in opposition to the 1967 occupation of the Palestinian West Bank, but committed to the demolition of the State of Israel. Now, after October 7, the same students and faculty who insisted that BDS is non-violent openly justify Hamas atrocities as an act of “armed resistance.” Never before in the Israeli-Palestinian conflict have there been at this scale acts of terrorism against civilian targets (wanton murder committed in close quarter, rape as a weapon of war, abduction of old people and children). Never before in the history of Palestine has there been the scale of destruction suffered in Gaza and loss of Palestinian lives at the hands of Israel, an unprecedented catastrophe in the history of Palestine. In the name of “the resistance,” students and professors in this country take part in the creation of a binary echo chamber in which Zionism and “Zionists” are direct objects of heated rhetorical abuse and even hatred.

Committed to liberal norms of academic freedom and the First Amendment, universities are tangled up in binds between legal obligations and the moral norms of the paideic community. By “legal,” I mean in relation to U.S. law. By “moral,” I mean in relation to the mission of the University as an institution of higher learning.

On the one hand, Universities recognize a set of legal and moral obligations protecting the culture of free speech and academic freedom. There is, however, another set of legal and moral obligations against discrimination and hate speech on campus, on the other hand. The bottom line is that free speech is a right and an obligation –even when what students and faculty say is incendiary; and even when it shuts off the open speech and lines of free communication that are vital to the intellectual mission of the University. Hate speech is, in fact, protected speech under U.S. law, as per the ACLU, citing  Brandenburg v. Ohio. Legally, anything goes in public discourse under the First Amendment short of targeted acts of discrimination. This includes anti-Semitic speech. But legal is not necessarily moral, i.e. conducive to creating the diverse and inclusive kind of moral community liberal Universities aspire to be or say they aspire to be.

Morally and rhetorically, the most extreme expression of anti-Zionism locks the discourse of Israel and Palestine into place with readymade slogans imposed over the history and conflict: settler-colonialism, apartheid, and genocide, decolonialism and resistance. At its most toxic, the performative posture is aggressive and self-righteous, the analysis pigeonholed under rigid concepts that reproduce binary thinking that, on campus, has been seeded in a bed of slogans and memes, hostile looks and remarks, graffiti, and, in rare cases, physical threats in person and online. Activist leaders reject out of hand commitment to a culture of inquiry based on mutual human recognition. Student and faculty activists advance the most vociferous anti-Zionism, rejecting not just the language of “conflict,” “compromise,” and “peace,” but also the putative “violence” of liberal norms like “civility,” “nuance,” and “dialogue.” Anti-Zionism in this radical articulation on campus is anti-intellectual and runs counter to the mission of the University to foster free and open communication of ideas.

STUDENT ACTIVISTS

In the liberal mainstream media and at campus newspapers, student protests in solidarity with Palestine and against Israel were recognized as having been mostly “peaceful” and have been described as “anti-war.” In fact, University administrations across the country confronted unprecedented challenges in the face extreme anti-Zionist activists as well as anti-peace, even pro-Hamas messaging and violent ideation. At many campuses, student activists who led the protests took an uncompromising stance advancing sharply articulated movement goals centered around divestment and academic boycotts against Israel. Reflecting the new tension on campus, the NYT reports here, “The Oct. 7 Hamas attack on Israel has sparked another wave of protests, which university administrators and free speech advocates say poses new challenges. In interviews, they described encountering students who were unwilling to engage with administrators when invited to do so, quick to use aggressive and sometimes physical forms of expression, and often wore masks to conceal their identities.”

About the core of activist student leaders at Vanderbilt and Pomona and the closing down of open lines of communication, the NYT quotes Daniel Diermeier, the chancellor of Vanderbilt.  “When I talk to my fellow university presidents, everybody has the same experience.” “They’re not interested in dialogue. When they are invited for dialogue, they do not participate…They’re interested in protesting, disruption.” At Pomona College, “seven students were suspended this month after a group of demonstrators forced their way into the president’s office to protest the removal of an ‘apartheid wall’ in support of Palestinians. School leadership described the incident as part of a troubling pattern in which students wearing masks that covered their faces set up tents on parts of the campus in violation of Pomona policy, harassed staff and visitors on campus tours, and then refused to identify themselves when asked. Were these even students?” The NYT quotes Tracy Arwari, assistant vice president for student affairs at Pomona, “In the same way we think about anonymity in internet communications, it’s really hard to have an argument if you don’t know who you’re arguing with.”

It is impossible to generalize about students who joined and the many students who supported the rank and file of the protests in the name of Palestine. It is safe to say that the soft core of protest and support for the protest has not been “extreme.” The same cannot be said of the cadre pro-Palestine-anti-Zionist student activists who led the protests and shaped movement goals and messaging under the aegis of groups like Students for Justice in Palestine, their national leadership, local chapters, offshoots, and allies on and off campus. The bind remains the same. No matter what, free speech of students is a vital university norm, even if students who exercise that right reject the value of comity and violate norms of free and open communication. But what does free speech involve? Does free speech give a core of activists the legal and moral right to impinge on the free speech and rights of others on campus? Does free speech give a core of activists the right to disrupt the operation of a university in the face of what for them is gross injustice supported in their name by their own community and country? What is the difference between speech that is protected and acts of civil disobedience that can be proscribed by University leaders?

 UNIVERSITY LEADERS

As they are beginning to appear in public, many of the parallel campus taskforces on anti-Semitism and on Islamophobia all agree that university administrations bear responsibility for the current state of campus life. The taskforces on Islamophobia report administrators restricting what the taskforce members say is the free expression of pro-Palestine discourse on campus. The Anti-Semitism taskforces recognize that administrations were unequipped to respond to pervasive anti-Semitism directed at “Zionist Jews” on campus. It bears repeating. All of this is very strange and new. Columbia University President Shafik in her testimony before a hostile Congress admitted that Columbia was unprepared for what she called a “different world” on campus Shafik “conceded that Columbia had been unprepared for the protests after the Oct. 7 Hamas attack on Israel, with policies ‘designed for a very different world.’”

About free speech and limits to the exercise of free speech in this new and different world of protest and civil disobedience on campus, President Shafik expressed an emerging consensus among University administrators meant to square the circle. In a press release, Shafik maintained that the University “recognizes two kinds of limitations on the right of freedom of expression: reasonable time, place, and manner restrictions and restrictions on expression that “constitutes a genuine threat of harassment, that unjustifiably invades an individual’s privacy, or that falsely defames a specific individual . . . The University has an obligation to assure members of its community that they can continue in their academic pursuits without fear for their personal security or other serious intrusions on their ability to teach and to study.”

Campuses have seen a range and combination of responses University leaders.

–Leaders fall back on rules of student conduct and University policy, and they revise and issue new ones to meet the moment. What kind of speech is protected and what kind of speech is proscribed under conditions relating to time, place, and manner? How to determine the tie, place, and manner of free speech? What kind of expression will a university tolerate as representing the University, i.e. departments, facilities, websites and listservs? On some campuses, administrators prohibit statements from departments and programs, and the expression of political content on departmental listservs, slogans hanged or projected on public structures such as dorms, student centers, and libraries, etc., etc. Barnard imposed new rules restricting all expressive flyers on doorways in dorms. Michigan issued new rules restricting disruptive conduct interrupting university operation and events, which you can read here and as reported here. Here is a critical statement from the ACLU against the draft at Michigan. Attempting to sift out protestors from off-campus, many schools have controlled egress to campus, demand that students identify themselves as students. Mask prohibitions are being considered.

–Leaders discipline students and in some cases faculty and administrators: Students were charged with disruptive behavior, violation of law, violation of University policy, failure to comply with policy, vandalism or damage to property, unauthorized access or egress, disrupting campus life. Some students were suspended, others were put under probation. Charges were filed and then retracted. While critics from the Jewish community objected to retracted discipline, it seems there has been good faith effort on the part of universities not to ruin the academic careers of students. Professors have been suspended while complaints against them have been reviewed (and ultimately dismissed). Three deans at Columbia were disciplined and re-assigned, and another made to comply with attempts to contain the fallout from gross and unprofessional text-communications at a meeting intended to assess the problem of anti-Semitism on campus. Two high-profile University heads were pressured to resign their position after a disastrous appearance before a hostile Congressional committee acting in bad faith (members claimed to be defending Jewish students, but were, in fact, attacking the University as an institutional body committed to liberal norms of diversity, equity, and inclusion).

–Leaders set up taskforces and establish training in anti-Semitism as part of faculty and student anti-discrimination training. (One guesses that these attempts to include anti-Semitism in DEI training will be a new source of controversy among student and faculty activists in the fall semester 2025).

–Leaders are consistently falling back on the 1967 Kalven Committee: Report on the University’s Role in Political and Social Action at Chicago adopting “neutrality” as a corrective default position restricting official communication responding to large issues of the day relating to politics, war and peace, and social justice. https://provost.uchicago.edu/sites/default/files/documents/reports/KalvenRprt_0.pdf  In a University, “The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.” (A critical review of “neutrality” at Chicago was published here, the arguing being that so-calleded neutrality only works to entrench a status-quo, in this case, the status quo “supporting” Israel.) https://www.chronicle.com/article/the-cynicism-of-institutional-neutrality?sra=true

In sum, university leaders are scrambling to confront a fourfold challenge: [1] concerns about student safety, [2] enormous pressure from the general public including the press, local and national politicians, boards of directors, donors, and parents [3] faculty and students across the political spectrum, [4] potential violations of federal anti-discrimination law as well as the moral obligation to create an inclusive campus open to diverse ideological viewpoints.  MIT president Sally Kornbluth wrote a letter on Jan. 3 announcing a new committee to figure out how to balance freedom of expression with “the need to guard against harassment, bullying, intimidation and discrimination.”

These prophylactic acts by administrations are structurally incoherent; because, in this case, there is no consensus regarding what counts as anti-Semitism and how it might relate to anti-Zionism; and because there is very little goodwill and comity shown on campus today about Israel and Palestine.

FACULTY ACTIVISTS

The principle of university-neutrality is intended to leave faculty free to express intellectual viewpoint diversity, to make statements and sign statements in their individual capacity as professors. Faculty are also left free to fail to design better models of intellectual inquiry relating to Israel and Palestine. Legally and professionally protected speech does not, however, substitute for professional ethics. It is one thing for students not to know anything when they opine about an overseas conflict in which their own country is deeply entangled. In respect to professional ethics, faculty do not get that pass. In violation of professional standards, non-experts in the field who are committed to Palestinian solidarity issue confident hot takes in public and on social media while conceding no actual knowledge about Israel, Jewish history, the history of Palestine, and the history of the region at large. Without necessarily knowing anything on their own,  there are faculty colleagues who reduplicate and share talking points concerning Israel and Palestine that keep the discourse polarized. The turn to theoretical models based in settler-colonialism and even critical race theory entrenches binary thinking about Zionism and anti-Zionism and the modern Middle East and North Africa.

Anti-Semitism is at the bottom of the discourse. Along with student activists, pro-Palestine-anti-Zionist activist faculty recognize a weak point which they address with readymade and rote talking memes. “ANTI-ZIONISM ISN’T ANTI-SEMITISM,” “JUDAISM ISN’T ZIONISM,” and the pat and widely recognized truism that “CRITICISM OF ISRAEL ISN’T ANTI-SEMITISM.” No better than slogans, these statements are protective tags. They do not embody substantive formulations based on actual knowledge. A signal to the hollow quality of the discourse is the support activists require from Jewish fellow travelers who, for their part, represent a token minority of American Jews. On this thin reed, non-Jewish colleagues with no professional or social competence weigh in automatically as if it was crystal-clear what constitutes anti-Semitism and what doesn’t, what is Judaism in relation to Zionism and Israel, and what are Zionism and Israel in relation to Judaism. If anti-Semitism was not part of the problem, there would be no reason to disavow its place in the movement with such pro-forma consistency. The intent is apologetic. The tags deflect serious criticism that activists, including on faculty, are contributing or are being seen as contributing to the construction of echo chambers in which anti-Semitism on campus and in society is fomented in the name of pro-Palestine-anti-Zionist free speech and academic freedom.

There is a wide range of faculty expertise on campus about Israel and Palestine. Some professors are established experts in their field, while many opine without even rudimentary knowledge. Many of us will recognize that intellectual humility is an uncommon virtue on campus. More often than not, faculty weighing in on Israel and Palestine fail to consult scholarly literature, sift through what they know and what they don’t know; take steps to fill in gaps of knowledge; weigh multiple sources and diverse viewpoints. This is not to say political discourse and action require deep scholarly immersion. With a minimum of due diligence, faculty should be able to identify the motivations of different political actors, especially in situations of conflict about which faculty advocate. Who are the principal actors and what segments of society do they represent? How do members of a political community define their own best interests? What are the models with which to conceive normal inter-group animus from xenophobic and chimerical hatred? To what does a conflict compare? To what does it not compare? What constitutes genocide? To end the conversation and simply state “this is not a conflict” or “nuance is violent” is itself a point of free speech, but nothing if not a grave act of anti-intellectual arrogance.

It is an open question how broadly supported activist faculty by their colleagues. Again, support varies across programs and departments and schools, and also across college and university campuses. It is best to assume good faith. Faculty are sickened by the long history of the conflict, the suffering and war, and most of us want to see an equitable resolution to it. Instead of binary models, the ones that might better shape campus discourse surrounding Israel and Palestine require attention to human suffering + historical understanding + attribution of political responsibility + a vision for a common future. There is no way to secure that kind of discourse apart from the expression of free speech and open speech that are the best mark of academic freedom.

A TAKEAWAY

In classical Enlightenment liberal theory, a distinction is made between freedom of thought, on the one hand, and the action an administrative body can compel or prohibit, on the other hand.  In our terms, anti-Semitic discrimination, violence, harassment, intimidation and bullying constitute prohibited action, while anti-Semitic speech constitutes protected speech. Justifying or celebrating the murder of Jews in Israel while calling for the destruction of the State of Israel and “Zionists off campus” falls under the legal rule. In an adversarial setting, the same rule permits one to say that this free expression of anti-Zionist speech is, indeed, protected, and is, indeed, anti-Semitic. If this is a victory, then it is a pyrrhic victory for free speech and academic freedom. It is not something university leaders and faculty colleagues should be especially proud of, seeing how the discourse on Israel and Palestine on campus has come to this.

The remaining problem with the free expression of polarizing and even hate-filled speech directed at “Zionism” is how it puts Universities at possible risk of violating Title VI of federal U.S. law prohibiting discrimination on the basis of race, gender, sexual orientation, national origin, and religion. Anti-discrimination law assures inclusive participation of students on campus. Without directly naming Title VI, the ACLU in its statement on campus free speech cited above alludes vaguely to the statute when they write, “Universities are obligated to create an environment that fosters tolerance and mutual respect among members of the campus community, an environment in which all students can exercise their right to participate meaningfully in campus life without being subject to discrimination” (emphasis added). It is important here to underscore that the keyword of Title VI is equal participation, which is a legal obligation, and in possible tension with abusive expressions of free speech.

The libertarian position, which you can read here and here, is probably the right one. It supports total free speech, but precludes protesters from occupying public space beyond reasonable limits relating to time and place. Under this rubric, free speech would not include the semi-permanent blocking of access to university gates, quads, central walks, buildings, classrooms, dorms, cafeterias and libraries; or disrupting and otherwise preventing other people from the free expression of their own ideas. Under U.S. law, free speech does not include speech that “veers into targeted harassment that is ‘so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.’”

As reported in the press, University administrations appealed to the basic liberal-libertarian distinction between speech and action when they began to dismantle the permanent tent encampments put up during the protests. Restrictions were placed on action, not speech. At MIT and Pomana, the administrators justified their action largely because of outsiders making things too volatile. They pointed to the inability to separate pro-Palestine and pro-Israel protesters, escalation from Palestinian protesters, including blocked access to campus facilities. At the University of Chicago, , PRESIDENT President Alivisatos cited the disruption of classes, vandalism of University property, destruction of approved student installations, and the raising of the Palestinian flag on the main quad flagpole as reasons for escalating the University’s position. ‘The encampment has created systematic disruption of campus. Protesters are monopolizing areas of the Main Quad at the expense of other members of our community. Clear violations of policies have only increased. Our students have issued a torrent of reports of disrupted classroom learning.’”

The distinction between speech and action at a moment of political polarization provokes basic questions about control of University life that go well beyond Jewish students confronting openly hostile speech and attempts to exclude “Zionists” from campus life. Universities are free to enforce or not enforce student rules of conduct and impose reasonable restrictions on the “time, place and manner” of protest. For many Jews on campus, the pro-Palestine-anti-Israel protests are unlike protests against the Vietnam War, Apartheid in South Africa, the Iraq War, and anti-Black racism. What is profoundly different about the campus politics of Israel and Palestine is conveyed in the statement from MIT: “This situation is fundamentally different. Why? Because this is not one group in conflict with the administration. It is two groups in conflict, in part through us, with each other.” For many Jews and especially Israelis, the protests “delivered a constant assertion, through its signs and chants, that those who believe that Israel has a right to exist are unwelcome at MIT.”

In her testimony before Congress, Jewish historian Pamela Nadell concedes that anti-Semitic speech is, in fact, a legally protected category of speech. She notes, however, that free speech means anti-Semitism on campus can be named as such, even if claims to that effect make students and faculty “uncomfortable.” Nadell notes that the American Jewish community has a history and resources for calling out and exposing a/s and redressing it in educational, cultural, legislative, and judicial bodies. Nadell highlights the May 2023 U.S. National Strategy to Counter Antisemitism, a presidential initiative to counter antisemitism, which, instead of isolating anti-Semitism, includes the struggle against it as part of a common mission combatting Islamophobia and all other forms of bias and discrimination based on race, gender, and sexual orientation.

At bottom, the most urgent questions about the pro-Palestine-anti-Zionist discourse and protests after October 7 are moral, not legal. What “should” or “should not” be said on campus, what is “acceptable,” what is “unacceptable” cannot be legally settled. At the Columbia Spectator, Brent Roark Stockwell and Andreas Wimmer sought middle ground against the targeting of students and calling for their removal from campus. But don’t call your peers Nazis or genocide supporters or terrorists. On the tension between law and ethics, their critical takeaway is “based on the conviction that members of a university community should not [act] to push the limits of legally acceptable speech, but to be respectful to each other and accept the reality of fundamental disagreement.” Jewish ethicists will recognize in this formulation the classic view in Talmud that, ethically, one “should” stop before the limit of what the “law” actually permits.

Accepting the reality of fundamental disagreement is one thing, in all likelihood, a necessary stopgap. It is probably all that is practically possible in relation to the politics of Israel and Palestine on campus today. But the free speech of fundamental disagreement on its own is adversarial and corrosive, not a guarantee of open speech and mutual respect. A culture of fundamental disagreement fixes disagreement in place. It silos people while aggravating conflict, locked in with no possibility of resolution. On its own, the free expression of fundamental disagreement inhibits speech as much as it protects it.

Rights are fundamentally exclusive in a culture of fundamental disagreement, where people are free to disagree and leave it at that. Jewish students and faculty are within their right to hotly contest so-called ambiguous statements (River to Sea) (Israel will Fall) that Stockwell and Wimmer call “plausible and reasonable.” But, the reality is polarizing. Some campuses have seen calls by pro-Palestine-anti-Zionist activists to boycott Jewish professors; Jewish students report being shunned by peers. In turn, the reality of fundamental disagreement is one in which Jewish students might reasonably decide to avoid zones of fundamental conflict, which might include clubs, classes, programs, departments, schools, colleges, and universities that do not welcome and even punish the free expression of their own viewpoint diversity.

Ideally, we should be able to fold free speech as a protected right into open lines of free communication, fostering a culture of “fundamental agreement” based on broadly shared norms and values on which to establish sharp disagreement. My own inclination as a pro-Israel-anti-occupation partisan is that Jewish students and faculty should not be simply reactive in the current climate. No matter their ideological orientation, Jewish students and faculty engaging the politics of Israel and Palestine need to learn and establish basic fluency in the history and discourse, while staking out their own autonomous voice. My own politics recommend that students and faculty who engage in the politics of Israel and Palestine should double down on the vision of a future including the people of Israel and all its citizens at peace in the world and integrated into the region, a decent and just compact and a free Palestine at peace alongside the State of Israel in a new Middle East.

We lose sight of the fact that Universities are still, on the whole, marked by basic norms of comity. Criticism of Israel is not anti-Semitic. Criticism of Hamas is not anti-Palestinian or Islamophobic. Nadell in her testimony before Congress sees a campus culture where students and faculty are “curious and open-minded to learn more about the Israel-Hamas War.” Free speech committed to open speech and lines of communication about Israel and Palestine would nurture a culture of shared, bedrock normative principles: self-determination, democracy and equality, broad human sympathy and mutual recognition. I believe these commitments make for better, more capacious speech and politics than the either/or absolutes of radical anti-Zionist speech and politics polarizing campuses today.