Cornell law faculty Michael Dorf recently testified before the US Commission on Civil Rights about the Trump administration – as well as the Biden administration’s – investigations into antisemitism on campuses. His testimony is a great exposition of the ways in which the Trump administration has perverted civil rights laws to attack higher education.
It is very much worth a read.
Universities and colleges are part of the wider society, and the recrudesence of antisemitism in society (empowered in part by the close ties of organized antisemitic movements with the White House and its network of allies, including social media elites) means we have seen it on the rise here as well. (Not that universities or colleges have a great history in this regard, either.)
As Dorf makes clear, there are hard questions about how universities and colleges should respond to antisemitism and hard questions about what guidance and responsibilities the federal government should require of them.
There are some genuinely difficult questions about how campus administrators can and should weigh the value of free speech for faculty, students, staff, and community against the important goals of creating and fostering an environment in which everyone is welcome regardless of race, religion, national origin, sex, sexual orientation, gender expression, disability, or other characteristics that can be the basis for invidious discrimination. These issues can be difficult both in principle and in application.
Good faith efforts will be difficult under the best of circumstances, and no one in their right mind would characterize the last two and a half years as that.
Dorf characterizes guidance from the Biden Department of Education as basically unhelpful but also likely to be restrained by law. That restraint has disappeared under the Trump administration, which has been both unhelpful and unrestrained by law.
From lawful neutral to chaotic evil.
Dorf has followed up on these remarks with a supplemental submission responding to questions posed by the Commissioners, one of which concerned the IHRA definition of antisemitism.
This has become one of the central battlegrounds in fights over academic freedom and free expression, and Dorf nicely lays out the constitutional problem with imposing it. (Dorf focuses on the constitutional problem. The University of Toronto a few years back considered several definitions, and ultimately decided that imposing a single one would cause more problems than it solves.)
[T]he IHRA definition treats certain statements about Israel as presumptively antisemitic. If federal law creates even a rebuttable presumption that anti-Israel statements are antisemitic, I added, then it is unconstitutional under the First Amendment as viewpoint-based …
[For some of the IHRA examples]… it is nearly impossible to imagine how one could rebut the presumption. One of the examples is “claiming that the existence of a State of Israel is a racist endeavor.” How could someone who made such a claim go about showing it was not antisemitic? Would it suffice to point out that the speaker also thinks that the United States is a racist endeavor? That the speaker has Jewish friends? That the speaker is Jewish? [The IHRA definition] … nowhere provides any hint of what sort of context might render the examples not antisemitic. Thus, it arguably creates an irrebuttable presumption that the examples amount to antisemitism.
This is the whole point. The definition itself has little to justify it over alternatives. Each has pros and cons. But the zeal for the IHRA definition is driven by a presumption that its list of examples, even with their caveats and even if the examples themselves are not adopted, will have the effect of suppressing speech on Israel. As Dorf makes clear, that has been its effect: “experience shows that when incorporated into rules governing conduct, it functions as a de facto presumption that a great deal of speech critical of Israel will be deemed antisemitic.”
People should read the whole thing.
Cornell Chapter of the AAUP 