by Carly Gammill and Yael Lerman
November 9, 2023
A Jewish student at Harvard University harassed by anti-Israel protesters. Photo: Screenshot
The surge in anti-Israel and antisemitic sentiment in response to Hamas’s October 7 massacre, especially its blatant celebration by people around the world, is cause for serious alarm. This is particularly the case on college campuses, where Jewish, Israeli, and Zionist students across the nation face incidents of ostracism, harassment, discrimination, threats, and violence in unprecedented numbers.
Of course, antisemitism and its glorification are not new phenomena. In 1939, for example, the freshman class at Princeton University voted Adolf Hitler the “greatest living person.” The following year’s freshman class repeated the vote with the same results, as, regrettably, did students at Georgetown University.
But we have two key advantages over our 1930s and 1940s counterparts. First, we know what happened the last time we hoped and waited for the antisemitic rhetoric rampaging universities to subside. Instead of being eradicated, it merely appeared to lay quiet for a few decades as it simmered and then exploded in the last few weeks, beyond any level we’ve previously experienced in the US.
We therefore have a duty to ensure that university administrators are on clear notice of their legal obligation to protect their Jewish and Israeli students from a pervasively hostile campus environment. And if they deliberately ignore our warnings, it is our duty to hold them accountable.
This is where our second advantage comes into play. We now have a powerful legal tool in Title VI of the Civil Rights Act of 1964 (Title VI). A cornerstone of American anti-discrimination law, Title VI prohibits discrimination based on race, color, or national origin in programs receiving Federal financial assistance. Recipients who fail to comply with their responsibilities under Title VI risk the loss of their Federal funding. While there is no confusion that the “national origin” category of Title VI covers Israeli students, the US Department of Education has repeatedly affirmed that its protections also extend to groups based on real or perceived shared ethnicity or ancestry, including Jews.
In accordance with the lessons of history and the longstanding commitment of StandWithUs to support students in the face of anti-Jewish bias and bigotry, on November 6, 2023, our Center for Combating Antisemitism and the StandWithUs Saidoff Legal Department wrote to university general counsels and vice presidents for student affairs across the nation to remind them of their legal duties to Jewish and Israeli students and identify specific actions they should take to align themselves with the requirements of Title VI and other civil rights laws. As explained in the letter:
(1) While students generally have the right to express their views on campus, academic departments, student government bodies, and registered student groups, do not have the right to misuse university resources — such as official school social media accounts and access to email listervs — to propagate hatred or incite violence. Such actions run afoul of professional standards, violate university policies, and create a hostile environment for Jewish and Israeli students.
(2) Universities have the responsibility to ensure that hateful speech does not escalate to harassment, discrimination, or criminal conduct on campus. If and when it does, it is not protected by academic freedom or freedom of speech, and the university administration is obligated to take the necessary steps — including punitive measures — to remedy the harm caused and deter such conduct from recurring.
(3) It should be self-evident that Hamas’ massacre, dismemberment, rape, beheadings, and kidnapping against anyone, let alone children, babies, the disabled, and the elderly, can never be justified. Yet moral clarity on these matters appears to be lacking within higher education institutions. University administrators should set the tone on their universities by using their voices to unequivocally condemn such acts of terror. This would clarify the university’s position as opposed to allowing the appearance by student groups who are pro-Hamas to represent the university.
(4) University administrators must ensure that faculty are unable to misuse their class time (including cancelling classes) for political indoctrination, especially when it may serve to marginalize Jewish students and support or promote terrorism.
(5) While the right to protest is generally protected under the First Amendment, allowing outside community members, who may harbor antisemitic intentions, to participate in student protests on university grounds is not necessarily protected. Administrators should do all in their power to limit non-student access to student events, check for valid student identification, and address unlawful behavior — including by making arrests where appropriate — to help protect the safety of all students.
(6) To the extent permissible under applicable law, universities should prohibit the wearing of masks during demonstrations. They should also ensure robust enforcement of laws prohibiting the wearing of a mask to conceal one’s identity during the commission of a crime. These actions can help prevent violence and harassment on campus and protect the safety of all students.
Universities today once again find themselves torn between asserting their inclusive values and acting on them. This time, we have the benefit of hindsight and the legal tools to protect students. It is the obligation of college and university administrators to apply both. And it is our organization’s mission to ensure that they do.
Carly Gammill is the director of the StandWithUs Center for Combating Antisemitism. Yael Lerman is the director of the StandWithUs Saidoff Legal Department.
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