August 10, 2021
VIA EMAIL
Dear University Presidents and General Counsels,
We write on behalf of the StandWithUs Saidoff Legal Department and the StandWithUs Center for Combating Antisemitism, divisions of StandWithUs, an international non-profit Israel education organization. We request that you issue immediate administrative guidance to your faculty and students in response to actions taken this spring by multiple university academic departments and student governments. In particular, we are concerned about the misapplication of university policies and failure to uphold professional standards of conduct, found in instances of: (1) certain academic departments’ conduct unprotected by the principles of academic freedom; and (2) certain academic departments and student governments improperly using university listservs and university social media accounts to disseminate politicized communications to students and faculty that marginalize students based on their Jewish ethnicity, Zionist identity, and Israeli national origin.
We recognize and appreciate the campus environment as a place for diverging viewpoints and discourse. The fundamental pillars of academic freedom and free expression are essential to institutions of higher learning. However, academic departments and student governments should not champion and disseminate one-sided political viewpoints on behalf of a university. This is especially true of rhetoric and actions that marginalize students based on protected components of their identity, such as the Jewish religion, Jewish ethnicity or ancestry, and Israeli national origin. Universities should not be safe harbors for those who disseminate anti-Jewish hate by calling it another name and then dressing it with the university’s imprimatur through the use of the university’s channels. Campus administrators play a critical role in creating ethical boundaries and clarifying policies for the university community. Such boundaries do not infringe on free speech or academic freedom principles; rather, they provide moral clarity and recalibrate campus to an equitable, inclusive, and intellectually robust environment.
We also would like to remind your administration that for many Jewish and Israeli students and faculty, Zionism—the right of Jews to self-determination in their ancestral homeland of Israel—is an integral part of their identity, creates a feeling of security as Jews in the diaspora, and forms a fundamental part of their ethnic, ancestral, and religious heritage. In this way, Zionism is as much a part of the identity of many Jews as wearing a kippah (yarmulke) or maintaining a kosher diet.
Therefore, we urge you to give this matter your utmost attention and provide critically needed guidelines to your faculty and students. We encourage you to do so before the new 2021-2022 academic year brings fresh policy violations and potentially discriminatory actions, particularly against Jewish, Zionist, and Israeli students and staff.
A. Requesting That You Issue Guidelines to Faculty on the Limits of Academic Freedom When Using University Channels for Political Purposes
Our legal research indicates that the current practice of academic departments—when espousing biased, political viewpoints through official university channels—violates professional standards and misuses the parameters of academic freedom. We therefore request that you immediately inform your faculty of your expected standards of conduct and the boundaries of academic freedom, as suggested below.
The American Association of University Professors’ (AAUP) 1940 Statement of Principles on Academic Freedom and Tenure defines the prevailing professional standard of academic freedom for faculty. It states (emphasis added):
"Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter that has no relation to their subject."
"As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence, they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution." Numerous academic departments have released biased and politicized statements through official university media, which marginalized Jewish students based on components of their Jewish identity. These departments acted outside the scope of their departmental purview, professional standards of conduct, and the boundaries of academic freedom. They failed to “exercise appropriate restraint” and “show respect for the opinions of others.” They issued statements that weighed in on "controversial matter that has no relation to their" academic department. And they failed to comply with the AAUP Academic Freedom and Electronic Communications, which cautions that “faculty members ‘should make every effort to indicate that they are not speaking for the institution’ when in fact they are not doing so.”
Each university has its own set of policies on this matter. We are happy to help you find the relevant policies at your university. Below are examples of policies that may be instructive:
· Public university example: UCLA Policy 110 sets forth authorized, restricted, and prohibited uses of UCLA trademarks and university name (i.e., “University Assets”). Provision IV(A)(2)(f) expressly prohibits “UCLA staff, faculty, and individual student use of the University Assets or their affiliation with the University in any manner that suggests or implies University support, endorsement or advancement of, or opposition to, any issue, activity or program, whether political, religious, economic or otherwise.”
· Private university example: Tufts University policy provides that, “Tufts has an obligation to its students, alumni, faculty, staff, donors, and others to ensure that the use of its name falls, in general, within its primary mission of research and education. Some activities such as promotion of individual causes, political or otherwise, clearly fall outside this mission.”
When academic departments issue official statements on politicized matters, they likely violate university policy. Additionally, when such statements are posted on departmental websites and official social media accounts, which include university trademarked logos, the statements are also misleading about their source of origin and likely violate university policy.
Your administration has a responsibility to clarify and enforce university policies, especially when academic departments have issued or signed on to official statements promoting one side of a political controversy while using language that meets the International Holocaust Remembrance Alliance (“IHRA”) Working Definition of Antisemitism.
We urge you to issue the following model guidelines and provide training to faculty that clarifies the time-honored limits of academic freedom and informs them when they violate university and AAUP policies:
Academic departments must exercise sound judgment and caution and therefore must not introduce department-wide statements through any medium on controversial matters that have no relation to their respective departments. As university leaders on their respective subject matters, academic departments must remember that students and the public may judge their profession and their institution by their utterances. Hence, they must be accurate, exercise appropriate restraint, and show respect for the opinions of others, including colleagues and students within their department that may hold opposing viewpoints. They must not represent that they are speaking for the institution when expressing, promoting, or taking one side in a public debate on a controversial subject.
To the extent disclaimers are used, they should include language that the statement does not represent the views of the department or university as a whole and may stand contrary to university values. However, disclaimers cannot be used as a smokescreen to justify statements that effectively marginalize a student’s sense of identity and heritage. Even with a disclaimer, certain statements may still be inappropriate when considering the intimidating and marginalizing impact such statements may have on students, who often believe that departmental websites represent the official views of the department itself or the university as a whole.
B. Requesting That You Issue Guidelines on Disseminating Politicized Information Using Electronic University Resources
Nearly all universities have established guidelines on acceptable uses and restrictions of university electronic communications. Typical language may appear as, “electronic communications resources may be provided by University units or sub-units in support of the teaching, research, and public service mission of the University, and of the administrative functions that support this mission;” university electronic communications may not be used for “uses that violate other University or campus policies or guidelines.”
As stated in Section A of this letter, most universities also have policies restricting the use of the university name and trademark logo in connection with politicized matters. Therefore, should academic departments or student governments use a university-owned listserv or official social media account to disseminate politicized statements, they likely would do so in flagrant violation of university electronic communication and other policies. Because many academic departments and student governments have violated such policies by issuing inflammatory and discriminatory statements using university electronic communications in spring 2021, we believe your immediate issuance of guidelines to faculty and students is essential at this time.
Wayne State University is an excellent model in this regard. In June 2021, the Wayne State Student Senate passed a resolution condemning Israel using incendiary, divisive, and misinformed rhetoric. The Senate wished to use its access to the university listserv to email its resolution to the entire student body and faculty. Wayne State’s President, M. Roy Wilson, blocked this action. Citing the statement’s “inflammatory” nature and its lack of civility and respect, President Wilson refused to allow dissemination of the discriminatory resolution through the university’s email listserv. A university spokesperson further stated that the resolution was not an official university position and did not speak for the university. By using the listserv to transmit a message to all students and faculty, the divisive statement could be construed as representing the views of the university—which it did not. Therefore, the university exercised its right to block dissemination of the resolution through the listserv system.
This incident sets appropriate legal and moral precedent. We urge you to invoke your similar rights by providing clarification to your faculty and students outlining the limits of their ability to disseminate official university communications that are divisive, inflammatory, and discriminatory.
Other universities have also addressed these issues and implemented policies that can serve as models. Bates College has a class listserv policy that states, “listserv messages must be class-specific or specifically relevant to students in that particular class year. You may not use these lists to send out general announcements.” Stanford University provides guidelines to staff and students for social media accounts owned by the university: “When engaging on social media on Stanford’s behalf, do not express political opinions or engage in political activities.”
Limiting faculty and student leaders’ abilities to disseminate inflammatory, marginalizing messages through official university channels does not run afoul of First Amendment free speech or academic freedom principles. Rather, it is a necessary step towards providing clarity and ethical guidance to ensure compliance with professional standards of conduct and an equitable campus environment.
We suggest the following model guidelines as consistent with these goals:
When an authorized user utilizes the university listserv to send widely distributed, non-personal emails to students and faculty, or posts on an official university social media account for the purpose of communications with students and faculty, such user may not express controversial political opinions or engage in political activities that could give the appearance of representing official university viewpoints. Individuals may express controversial political opinions or engage in political activities in an individual capacity through their own social media accounts or emails. When doing so, faculty should take measures to avoid any appearance that they are representing, speaking, or acting on behalf of the university or a department in an official capacity. Faculty are encouraged to be thoughtful and careful when engaging in controversial topics on personal social media accounts: such posts may be replicated and/or taken out of context, and they remain online indefinitely. When using official social media, email listserv, and other university resources, authorized users should maintain standards of respect and civility and avoid controversial subjects of a purely political nature.
C. Concluding Thoughts
In a widely-celebrated law review article, the author famously likens baseball’s infield fly rule to the legal world. He states that in both baseball and legal society “the forces of competitiveness and professionalism required that the moral principle of fair play be codified so that those who did not subscribe to the principle would nonetheless be required to abide by it.” Similarly, universities today need codified rules of fair play, civility, and inclusion. Such rules are not about restricting free speech, which is permitted with limited restrictions on every public college campus. Rather, they are about providing moral clarity and guidance in a neutral, equitable fashion. Without clarification from university leadership as to the standards expected of academic departments, student governments, and individual faculty, the rules of basic civility are being disregarded in favor of divisive political agendas that marginalize Jewish, Israeli, and Zionist students on campus.
As a result, we believe your administration can and should take the following actions:
Immediately issue guidelines and provide trainings to faculty on the time-honored limits of academic freedom.
Immediately issue guidelines and provide trainings to faculty and students on inappropriate use of official electronic communications resources, such as university listservs and official university social media channels, including a prohibition against the use of these resources to advance politicized viewpoints that could marginalize students and contribute to a pervasively hostile campus climate.
Ensure that there are consequences for violations of these above guidelines. Note that in some states, a violation of some of the terms set forth in the guidelines carries the penalty of a misdemeanor.
StandWithUs receives hundreds of requests for information from alumni, students, and parents asking if a particular university is a welcoming place for Jewish and Israeli students, where they can study and enjoy campus life without undergoing constant attacks on their identity, whether in the classroom, the commons, or the cafeteria. Please let us know what we should tell these alumni, students, and parents regarding your university and your implementation of these guidelines.
Thank you for your prompt attention to these important concerns. StandWithUs is available to consult with you on any of these matters at legal@standwithus.com. Given the urgency of this matter and the start of the upcoming academic year, we respectfully ask for your response by August 23, 2021.
Sincerely,
Roz Rothstein
CEO & Co-Founder
StandWithUs
Yael Lerman
Director
StandWithUs Saidoff Legal Department
Carly Gammill
Director
StandWithUs Center for Combating Antisemitism
