Combating Antisemitism on College Campuses: A Look at the Trump Administration's Civil Rights Enforcement Efforts One Year In

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Welcome to FEDSOC Forums, a podcast of the Federal Society's
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practice groups. I'm Ny kas Merrick, Vice President and Director
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of Practice Groups at the Federal Society. For exclusive access
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to live recordings of fedsock form programs, become a Federal
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Society member today at fedsoc dot org.
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Hello everyone, and welcome to this Fireless Society Virtual eva.
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My name is Sarah Clark, and I'm Assistant Director of
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Practice Groups at the Fireless Society. Today we're excited to
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host this besto weminar called Combating Anti Semitism on College Campuses,
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a look at the Trump Administration's civil rights enforcement efforts
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one year in. Today, we're fortunate to have with us
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as our moderator Andrew Grossman, who is a partner at
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Baker Hosteller Lollp. He has appeared before the Supreme Court,
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nearly all federal Courts of Appeals, as well as some
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state apollo courts, litigating high profile and complex commercial, administrative,
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and constitutional issues. He advines his members of Congress on
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matters of constitutional and administrative law, having testified more than
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a dozen times before the House and Senate Junior Sharity Committees.
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Mister Gerstman is also a senior Legal Fellow at the
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Buckeye Institute and an adjunct fellow at the Manhaun Institute.
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I'll leave it to him to introduce our other guests.
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If you'd like to learn more about today's moderator or speakers,
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their full bios can be viewed on our website, but
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that's not our word. Throughout the program, we'll turn to
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the audience for questions. If you have a question, please
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enter into the Q and A function at the bottom
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of your zoom window, and we'll do our best to
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answer as many as we can. Finally, I'll note that,
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as always, all expressions opinion today are those of our
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guest speakers, not the Fireless Society, but that mister Grossman,
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thank you so much for joining us today, and I'll
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hand hands over to you.
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Thank you, Sarah, and thank you to the Federal Society
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for hosting this discussion. Let me offer a few introductory
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remarks that will introduce the speakers.
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And we'll get to their remarks.
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Over the past year and a half, US universities have
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witnessed an unprecedented wave of violence, threats, and harassment against Jews.
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A recent article by Professor David Bernstein of the Scalia
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Law School documents a surge of anti Semitic assaults, threats, vandalism,
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and intimidation on and around American campuses, and that's coincided
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with widespread rhetoric endorsing or glorifying violence against Israelis, supporters
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of Israelis, and Jews at campus protests and even in
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classroom instruction. The Trump Administration's response has been forceful. In
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February of last year, the administration launched the Task Force
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to Combat Anti Semitism, charging it to quote root out
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anti Semitic harassment in schools and on college campuses. In
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March of last year, the administration announced a comprehensive review
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of university's response to anti Semitic harassment and their compliance
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with anti discrimination requirements that are a condition of federal funding.
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It then proceeded to cancel four hundred million dollars in
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grants and contracts to Columbia University cite in Columbia's inaction
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in the face of persistent harassment of Jewish students. It
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threatened sixty more universities with loss of funding for anti
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Semitic discrimination and harassment, and it put Harvard on notice
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that it was at risk of losing nine billion dollars
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in federal funding. The year since then has seen a
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state of litigation, including an anti discrimination lawsuit the administration
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filed against Harvard just last week, but there's been far
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more behind the scenes negotiation, deal making and job owning. Columbia,
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for examples, struck a settlement requiring it to enforce its
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time place in Manner restrictions on protests, to enforce its
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disciplinary policies, to impose punishments for encampments in violation of
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those policies, and to review its regional studies programs that
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teach about the Middle East and Israel. Even without settlements
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with the administration, other universities have seemingly gotten a message
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and changed their approaches. Yale and Dartmouth, for example, both
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cleared pro Palestinian encampments erected in violation of their rules,
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and a number of schools, including Yale and the University
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of Michigan, have de recognized pro Palestinian student groups for
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violating protest rules. Critics say the administration's enforcement efforts threaten
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free speech rights, including those of anti Israel protesters, faculty
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who consider Israel an illegitimate or a maligned state, and
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the universities themselves and their rights to determine their curriculum
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and determine which events occur on campus. This is, of course,
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not the first time that anti discrimination law has been
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seen to be intension with free speed rights. Attention is
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the focus of our panel today, So let me introduce
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very briefly our panelists. As Sarah said, if you'd like
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to learn more information about them, please visit the Federal
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Society's website. Kicking off our discussion will meet Elias Shapiro,
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who is a Senior Fellow and Director of Constitutional Studies
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at the Manhattan Institute and gives the author most recently
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of the book Lawless, The Miseducation of America's Elites. After
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Ilia is Eric Jaffe, who's a partner at Share Jaffe
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and has litigated many important first ammon cases. He's also
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the co founder of the recently launched group Neutral Principles,
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and finally joining us perhaps a few minutes late, will
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be Professor David Cole. He is the Honorable George Mitchell
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Professor in Law and Public Policy at the Georgetown University
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Law Center, and he formerly served as the National Legal
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Director of the American Civil Liberties Union.
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We hope that he will join us shortly. So with that, Iliah,
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great well, thanks very much. This is an important topic.
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When we originally scheduled it some months ago, there were
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other news for it, but now we have yet another
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newsbook is I think just this week or late last week,
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the Justice Department sued Harvard over anti Semitic activity, or
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rather not doing enough violated thereby violating Title six to
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protect equal educational opportunities for its Jewish students.
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And that's just the latest in.
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Various investigations, lawsuits, settlements, and other actions aimed at civil
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rights generally in higher education and anti semitism specifically. The
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administration has been more successful when it jumped through all
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the statutory hoops, namely launching investigation, issuing findings, making demands
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based on those findings, and then getting capitulation or agreement
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or remedy settlements of various kinds. It's run into legal roadblocks,
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more specifically procedural roadblocks in the courts when it tries
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to skip one of those steps, and just as it
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did I think in April of last year, issued demand
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letters without the formal investigative process to precede it, and
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so lower courts have called process fouls and said you
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can't do that. That's not following the statute, whether that
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be Title six or other relevant authority, but setting the
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process fouls aside on the substance of the matter. I
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think our universities, and especially our so called elite universities,
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have been failing both broadly on the civil rights front
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and more narrowly on the anti Semitism front, in letting
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so much UH behavior by students, by outside activists, structurally
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within the university having various conditions, programs, protests, disruptions that
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that that hurts both Jewish students Jewish applicants, and more broadly,
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when we broaden the lens to civil rights in general,
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you know, not complying with students for fair admission other
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UH race based identity based decision making the violates Title
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six and other civil rights statutes where this intercedes with
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free speech, I think, well, I look forward to hearing
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what Eric and David have to say. Is with demands
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that departments be ideologically balanced, other viewpoint type things that
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don't have to do with decisions on admissions and employment
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based on protected categories, and there I think there are
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some definitional issues, both in kind of demand letters and
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in the proposed compact with educational institutions, both because it's
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it's unclear exactly what ideological.
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Balance might mean or or viewpoint balance.
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You know, there have to be multiple perspectives on quantum mechanics.
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Or is it that we want, you know, half of
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the quantum mechanics professors or the physics professors to be
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republican versus democrat. Does that even matter in the area
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of physics, You know, all of these sorts of issues
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of trying to maintain that now, I think the administration
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is on safer ground to try to dictate the Shills Report,
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the third part of the Chicago trifecta, so the free
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speech guarantees, the Calvin Report, which has gotten better known
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about institutional neutrality, and the third part the Shills Report
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non discrimination by viewpoint in hiring.
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I think given.
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That there is a role for the government to play
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with strings attached to funding in enforcing free speech concerns
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and academic freedom concerns. Even though people like the president
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of my alma mater, Chris Eisgruber, have tried to fly
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the flag of academic freedom and free speech. I think
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he's he's got it backwards in many ways because these
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committees for hiring or admissions that do discriminate based on viewpoint,
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I think are impinging on on those very things that
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they that they claim to defend. But we can, we
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can get into into that. I think that's that's my
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overview of my perspective.
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Thank you, Ila, Eric.
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Well, you know, there are certainly points on which Illy
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and I agree. I agree that.
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Many institutions of higher education, Harvard, Columbia, others UCLA.
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Behaved divisionally in the wake of a cover seven and.
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Did little or nothing to actually protect students from threats
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and harassments and all of that stuff. We disagree on
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the I think we disagree on the administration's response to it.
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Ilia phrases it as sort of awkward and imprecise, and
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I would phrase it slightly differently. I think much of
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the initial response was of the variety of let no
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good crisis go unwated.
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If you look at the April third.
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Demand letter to Harvard and the follow up things, the
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demands had little to do with the anti Semitic problems
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and more to do with a long running you know,
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despising of Higher Ed, particularly because it was viewed as
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LEFTI and so to mix those two is problematic for
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someone like.
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Me, where I care quite a bit about.
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Anti Semitism and having equal access to things like to
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bond in the library and dorms and classes.
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But I am much.
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More pluralistic in what universities do about their wokeness and
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other contexts, and think that federal program should not be
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able to dictate the internal balance of viewpoints at universities,
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whether it's in hiring or whether it's in the academic viewpoints,
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even if it's on sensitive topics like Israel or race
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or gender and sex. I think that the neutrality needs
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to be at the programmatic level at the federal level,
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and so yes, I believe that schools with one viewpoint
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should be allowed in this view of schools or the
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other viewpoint should have equal.
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Access to funds.
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And my easiest example for that is religious schools, which
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WI certainly do not purport to be viewpoint neutral, and
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I think would deeply object to any test to make
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them viewpoint neutral on any of these topics, whether it's political,
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whether it's religious, whether it's sexual, whether it's race, and
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so you know, from a conservative perspective, if you're thinking
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about this, one needs to ask, you know, do the
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rights of free association and for sort of free thought,
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whether it's religious thought or sort of normal you know,
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speech related First Amendment thought, whether those trump are desire
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to have each institution model the First Amendment, because I
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don't actually think the First Amendment applies. So what I
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would say is, yes, we should be looking to things
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like Title six. We should be insisting on enforcement of time,
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place matter restrictions. I do not think this administration is
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actually doing that. I think that they just picked a
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couple of examples to beat up on people, and then
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we're happy to drop their horsemith and concerns the moment
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they promised to hire more conservatives, and that that is
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the abuse of a statute like Title six, not the
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sort of fair implementation of it. I actually have problems
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with Title six full stop. I have problems with strings
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on federal funding full stop. I think those are all
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unconstitutional conditions and arguably should be given strict scrutiny under
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the First Amendment.
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But that's probably a much bigger topic.
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I don't agree with Elia that the government has a
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lot of leeway and putting strings on, and I certainly
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don't agree that they can put strings on programs that don't.
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Have a nexus to the actual bad behavior.
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So if you're.
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Hiring crappy people in the Middle East Department, I don't
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understand why that means you get the yank old.
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The DARKA funds from the Biology department.
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Those seem a bit too far afield and looks like bigfooting.
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On free speech. So that's my general perspective on it.
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I'm sure we'll talk more about it as we get
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back into it.
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I want to give Spessor Poll a chance to chime
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in as well, But I view this more as a
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free speech problem, with the anti Semitism being sort of
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a strong man that is very important and is being
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sort of misused and abused by folks who have.
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A bigger agenda.
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Can I just say one thing about the strings that
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are attached and how Eric described them. There actually is
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no germanenance or proportionality requirement attached to federal funds.
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So indeed, if it's a.
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Wacky professor in the Middle Eastern Studies department, or a
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DEI officer or anybody else at the university, if they
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misbehave and violate Title six or other civil rights statutes
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in various ways. Then yes, all the funding to the
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medical school could be jeopardized. Now, whether it's wise to
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do so is a separate question whether you should be
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in policy. Best policy practice would be you know, my
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violation means smaller amount is in jeopardy. But when President
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Reagan was signing this, he didn't want that, and Congress
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overruled him and and and removed any sort of.
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Germane nous or proportionality requirement.
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I don't take any position on what the statute says,
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though I've seen some arguments the other way. My position
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is strictly a constitutional question that I think that level
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of leverage is unconstitutional.
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I don't care actually what statue says.
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So agree that's very cool.
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Yeah, So, first of all, my apologies for being late.
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I was teaching til noon, so it's hard to get
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out of there immediately. But thank you for having me,
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and thank you for having this this webinar. I think
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it's a hugely important topic and a topic about which
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all Americans of all stripes should be deeply concerned. For
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many of the reasons that Eric has has has laid out.
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I do think this is largely a pretext that the
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administration is not, uh, you know, doesn't really care about
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anti Semitism. They see it as a tool with which
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to bludgeon entities that they oppose because they oppose their
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political views, and they pose their their UH sort of
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ideological slant. I have long been an advocate for ideological
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diversity in UH in university settings, as well as UH
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race and class diversity. But I think ideological diversity is important.
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I think we need to do more and UH and
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I wrote a piece about this before Trump came into
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office and and noted that a wide variety of institutions
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were in response to criticisms by conservatives of the kind
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of ideological valence at some of many elite universities and
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conservative students feeling that they didn't feel the same freedom
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to express their views as their liberal counterparts had. That
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many universities were engaging in self studies and setting up
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committees and adopting programs that were designed precisely to address
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that concern. Georgetown was one. I headed up a free
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speech and Campus culture working group that was designed to
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address precisely that and recommended we, you know, bring in
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more conservative voices that we model disagreement across ideological divides
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and that that's you know, essential to effective education. So
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I you know, I am support the view that we
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should have ideological diversity. But the sad thing is that
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we were we were moving in that direction, and now Trump,
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by sort of taking a bludgeon and trying to impose
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it unconstitutionally through government coercion, may well cause a more
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resistance to that idea than uh than there than there
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actually was. Because you know, even though I am in
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support of ideologicaliversity, I am not in support of ideological
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diversity imposed by government. And I don't think anybody should,
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on any spect on any side of the spectrum, UH
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support giving the government the power to start controlling you know,
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who teaches and what they teach and from what viewpoints
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UH they teach. Academic freedom is too important a value
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to UH to sort of sacrifice in the interests of
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some short term, short term goal. So that's my principal concern.
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I think this is an attack, really the biggest attack
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on academic freedom since the McCarthy era, and deeply disturbing
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on the anti Semitism side. You know, first of all,
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I don't think the statute is as a broad as
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Ilia suggests with respect to the ability to punish wholly
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unconnected institutions. There is a kind of requirement to try
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to tie the remedy to the violation, and the Trump
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administration has done made zero effort. They've actually made an
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effort not to die the penalty that the violation, but
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also they've made no effort to really assess what is
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a violation of Title six versus what is a pro
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Palestinian protest, because not all pro Palestinian protests are violations
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of Title six. Not all slogans you know, from the
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River to the Sea or global Indefata are a violation
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of Title six. Title six does not preclude offensive speech,
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anti Semitic speech, you know, out on the mall, you know,
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in the course of a protest involving a war in
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which you know, one side is is identified with the
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Muslim faith and the other side is identified with the
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Jewish faith. It is about discrimination against people because of
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who they are, and you know, saying something offensive to someone.
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Conservative should be the first to be saying, you know,
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saying something that's offensive to someone, and Ilia should be
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the first to say saying something that's offensive to somebody
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on race or sex grounds, as he did when Biden
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had a choice about who to who to put in
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put on the Supreme Court, is not a violation of
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Title six. Is not discrimination. But the Trump administration has
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made zero effort to draw that distinction. The Congressional Committee,
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which I testified before you know, on which a last
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Stephonic was the most prominent figure, made no attempt to
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distinguish between pro Palestinian protest and anti Semitic discrimination. And
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there is a huge difference under the law. And all
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you need to do is read the ocr complaint against
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Harvard to see that literally every protest they they identified
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every pro Palestinian protest as an incident of anti Semitism,
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without any evidence that any particular student was targeted, that
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any particular anti Semitic statement was made. It was enough
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that students were protesting, and they were protesting against Israel.
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To treat that as anti simitism, that's just that is
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just a total miss understanding and misappropriation.
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Of Title six.
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All Right, I'll say that I agree with David on
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kind of the tactical point that by stealing certain steps,
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as I previously described, it, you know, levying the demand
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letter before the investigation was concluded. The administration did allow
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defenders of illiberalism on campus to kind of dig in
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and fly the flag of you know, now we're being
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coerced and oppressed by the government, which muddied the waters
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over all the bad stuff that's been going on on
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campuses in recent years.
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And I don't think this is all that.
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By all that bad stuff, I don't mean, you know,
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the latest iteration of the decades of faculty left wing bias,
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that that's uh, you know, that's gone on for a
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long time.
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Uh. You know, although the the.
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The Berkeley Free Speech movement that the hippies who took
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over the faculty lounge would now be called uh, retrograde
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white supremacists by by today's radicals.
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But be that as it's may.
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What what's different now is the over bureaucratization and the
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failures of leadership that we've saw in real time after
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October seventh, how different campuses responded in different ways. And
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you know, the leadership of Ben Sass at Florida or
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Daniel Deermeyer at Vanderbilt in ejecting people who had taken
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over lawns and black blocked access, taken over buildings, and
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so forth, rather than letting the problem fester and let
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students get intimidated and harassed not being able to access facilities,
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have programs being disrupted, you know, mit not punishing students
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who blatantly violated university rules of access and other things
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because a majority of them were foreign and they didn't
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want to jeopardize their visas. And so we have you know,
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US citizens in effect having less rights than foreigners, and
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or nobody getting punished for these blatant violations, and other
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students being harmed thereby, including Jewish students.
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But more broadly, I just you know, this charge that the.
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Administration is weaponizing anti semitism to go after wokeness in
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universities is just false. I mean both as a matter
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of personnel. I know Leo Terrell and Harmie Dillon in
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the Department of Education leadership, they're sincere in their desire
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to eradicate antisemitism. I mean, yes, they see lots of
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other problems with universities. If you read my book Lawless,
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you'll see how you know. I mean, it's just amazing
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that the heart of antisemitism in America lies on campus
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among the most educated and so called progressive people in
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the country. But that's because antisemitism, wherever it has flared
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up in world history, is a leading indicator of underlying pathologies,
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that there's something not right about the society where it
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flares up, and in this context and higher education, that
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means everything from cancel culture to indoctrination, intellectual corruption, to
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moral decay. So it's not divorced from the last ten, twelve,
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fifteen years of illiberal trends, the shift away from education
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to activism, the shift away from classical liberal values like
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free speech, do process and equality under the law towards
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postmodern critical theory of various kinds, changing structures, and all
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in the context of not just an antisemitic or anti
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Israeli or anti American, but generally anti Western ideology that's
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taken root in higher ed And so all of these
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things are connected, and it is certainly not going after
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the anti semitism cases, just as kind of the camel's
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nose in the tent of taking full control of universities. Generally,
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there are a lot of things to fix, and has
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there been some overreach, no doubt, both procedurally and as
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a matter of certain substance of demands, but overall, this
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is trying to address huge failures of bureaucracy, ideology, and
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leadership and higher ed that have been allowed to fester
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without any oversight.
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You're muted, Eric, I really.
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Have to push back a little bit. First of all,
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I don't know what's in Harmony's heart. I don't know
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what's in Turell's heart. What I do know is what's
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on paper when they sent the letter to Harvard, and
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what's in their complaint. And those complaints were pathetic. They
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were truly pathetic. They were written by a child who
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didn't know the facts, who didn't know the law, and
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who said, while I'm at it, what other goodies can
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I steal from Harvard?
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What else can I force them to do?
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I don't know how anyone can read those in good
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faith and think they're anything other than disingenuous, because.
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That's all they are.
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And whether it's slipped past Harmeat, who I know for
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years and don't think badly of it all, or a
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Leo who I don't know it.
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All, I can't say that. All I can say is
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a letter went out and they were pathetic, And then I.
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Look at the more recent complaint which Harmeat's name is on,
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and I once again watch the effort to circumvent Title
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six as procedural safeguards by calling it a contract violation
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and thus ducking all of the statutory procedures that you
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would need to implement Title six. I also note that
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there's an interesting set of facts that stop in twenty
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twenty early twenty twenty five, just before.
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The demand letter went out, And then I go back
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and read.
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The decision in the District Court of Massachusetts that points
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out that much of this has changed. Harvard's taking all
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kinds of behavioral changes, making all kinds of efforts to
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fix these problems. Yes they were terrible, Yes it was
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too late. Yes I would smack them over the head
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with criticism. I wouldn't necessarily send my kid there.
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I would do.
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All sorts of things. A Title six requires more than that.
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And miraculously, even this recent complaint is grotesquely silent on
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these things. And to be silent on those things in
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the face of an opinion that smacked you around left
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and right for having done such a bad job the first.
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Time, I don't think we can say that's genuine.
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I think you have to recognize that litigation is being
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used as a weapon, not as a legitimate attempt to
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enforce the law. So I'm not anywhere near as positive
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that the current efforts are genuine, even though I know
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lots of people in illustration who are deeply offended by
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anti Semitism, though apparently not offended enough to complain about
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heritage or Tucker or Nick flints.
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Some of them are.
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I'm not saying all of them, but some of them.
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But we should remember anti Semitism is not a left
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wing thing. It's a radical thing on the left and
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the right. I pose both versions of that. But pretending
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that it's just Harvard while ignoring other situations where it happens,
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I think reflects the fact that this is about something else.
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And look, I do agree with Ilia.
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That universities have had their heads up theirier end for
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decades now about how they deal with what they think
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of as academic freedom employalism. Would I like to see
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them be more pluralistic? Absolutely? Would I like to see
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greater diversity and campus Absolutely? What I like some rule
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that says you have to have pure viewpoint diversity? Do
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I need to have faculty that represent nick Fuentis's wing
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of the right wing party.
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Do I need to have people who represent the pro amos.
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I think universities get to make that choice and shouldn't
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be forced into those broad boxes, even though it would
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be wise for a modest pluralism in a university if
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I was going to send my own kid there, or
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want to teach there, or want to speak there. So
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that's sort of my perspective on it is that there's
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lots to be said after David talk a little bit,
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but I think there are interesting things that can be.
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Done in the context of Title Sex.
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And I am not absolutist on the First Amendment on
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00:31:39.680 --> 00:31:42.839
private campuses because I think there are things that the
485
00:31:42.880 --> 00:31:45.599
federal government indeed could do, they're just not doing them
486
00:31:45.960 --> 00:31:47.599
in the right way or at all.
487
00:31:47.720 --> 00:31:49.640
But there are some better.
488
00:31:49.440 --> 00:31:54.480
Solutions, I think to antisemitism, I would just add that
489
00:31:54.519 --> 00:31:58.720
I think maybe Ilia doesn't see the problem because he
490
00:32:00.000 --> 00:32:00.400
because you.
491
00:32:01.039 --> 00:32:05.640
Yeah, sort of engage in the same kind of failure
492
00:32:05.759 --> 00:32:11.599
to distinguish between what is a violation of the civil
493
00:32:11.720 --> 00:32:14.720
rights law that the federal government actually has an interest
494
00:32:14.839 --> 00:32:19.480
in enforcing and what it has no interest in enforcing.
495
00:32:19.599 --> 00:32:21.880
So you know, you said, well, you know, they they
496
00:32:22.000 --> 00:32:25.240
these schools, they let encampments exist, and they let them
497
00:32:25.480 --> 00:32:29.400
get in the way of people's access to classes, et cetera.
498
00:32:29.559 --> 00:32:32.680
And they didn't punish people to the hilt, and they
499
00:32:32.720 --> 00:32:37.480
didn't punish foreign nationals. You know, the federal government has
500
00:32:37.599 --> 00:32:43.799
no interest in you know, how Columbia or Harvard or
501
00:32:43.839 --> 00:32:49.079
any school or Notre Dame responds to a particular protest
502
00:32:49.279 --> 00:32:53.240
or demonstration or encampment or violation of its own rules.
503
00:32:54.119 --> 00:32:57.279
That's that's that's the school's choice. And it can decide
504
00:32:57.319 --> 00:33:00.160
to be harsh, as Columbia was and call it the
505
00:33:00.160 --> 00:33:03.920
New York Police. Or it can decide to engage in
506
00:33:05.039 --> 00:33:09.319
UH negotiations, as the Northwestern President did to try to
507
00:33:09.480 --> 00:33:13.559
end an encampment there. Or it can tolerate them for
508
00:33:13.599 --> 00:33:16.359
a period of time and then try to close them down,
509
00:33:17.160 --> 00:33:20.839
as the University of Chicago did. Those are all that
510
00:33:21.160 --> 00:33:24.720
is none of the federal government's business. There's no obligation
511
00:33:25.359 --> 00:33:29.640
on universities to enforce their rules to the max, to
512
00:33:29.680 --> 00:33:33.279
the hills in every instance, and no university does, just
513
00:33:33.319 --> 00:33:36.640
like no government does UH, and and and and so
514
00:33:36.960 --> 00:33:40.160
all that. The only time Title six is implicated is
515
00:33:40.279 --> 00:33:48.440
if the if the school shows deliberate indifference to racism
516
00:33:48.720 --> 00:33:53.079
or sexism. Uh well racism, uh not even sexism under
517
00:33:53.119 --> 00:33:57.440
Title six, that's what that's what it shows. And an encampment,
518
00:33:58.400 --> 00:34:00.920
uh and and and and sort of tootiating with people
519
00:34:00.920 --> 00:34:04.599
about closing an encampment or letting an encampment continue is
520
00:34:04.640 --> 00:34:09.800
not antisemitism. Even if it's an anti Israel protest in
521
00:34:09.880 --> 00:34:13.559
a war in which Israel's on one side and the
522
00:34:13.599 --> 00:34:17.079
people of Gaza are on the other side protesting that
523
00:34:17.119 --> 00:34:20.639
war is not anti semitism. Having an encampment that violates
524
00:34:20.639 --> 00:34:23.800
the school's rules is not anti semitism. And the government
525
00:34:23.840 --> 00:34:28.800
has no interest in forcing schools to enforce their own
526
00:34:28.840 --> 00:34:31.719
internal rules in ways that government wants them to be
527
00:34:32.199 --> 00:34:36.679
enforced unless they actually have evidence of antisemitism. And you know,
528
00:34:37.199 --> 00:34:42.159
do I deny there have been any incidence of antisemitism
529
00:34:42.239 --> 00:34:45.679
in the course of a very heated protest about a
530
00:34:45.760 --> 00:34:51.039
war between a Jewish state and a Muslim terrorist organization. No.
531
00:34:51.440 --> 00:34:54.599
I think there's been anti semitism, and there's been anti Islam,
532
00:34:54.760 --> 00:34:59.400
you know, Islamophobia, and on both sides, and it's lamentable
533
00:34:59.440 --> 00:35:04.360
but also understandable. And when people are feeling very uh,
534
00:35:04.400 --> 00:35:10.039
you know, passionate about a war that they usual you know, shorthand.
535
00:35:09.480 --> 00:35:10.159
Et cetera.
536
00:35:10.239 --> 00:35:14.239
But but that is not what the Trump administration is doing.
537
00:35:14.280 --> 00:35:16.119
It is not going in and sort of saying, okay,
538
00:35:16.440 --> 00:35:20.480
here's the incident that was not just a violation of
539
00:35:20.760 --> 00:35:25.039
you know, neutral school rules, but actually was targeted at
540
00:35:25.199 --> 00:35:30.199
Jewish students. They have not made that case in any
541
00:35:30.360 --> 00:35:34.840
instance whatsoever, Putting aside all the procedural violations, they have
542
00:35:34.960 --> 00:35:38.320
not shown any interest in making that case. And that
543
00:35:38.480 --> 00:35:43.000
to me supports the notion that this is not about antisemitism.
544
00:35:43.079 --> 00:35:48.199
This is about whacking a major part of civil society
545
00:35:48.440 --> 00:35:53.599
that plays a major role in any democracy in you know,
546
00:35:53.760 --> 00:35:56.519
checks and balances, and they're not interested in checks and balances.
547
00:35:56.519 --> 00:36:00.159
They're treating the media the same way, they're treating law firms,
548
00:36:00.159 --> 00:36:05.079
the same way. They are seeking to neutralize opposition. And
549
00:36:05.119 --> 00:36:09.679
we should all be concerned in a democracy when the government,
550
00:36:10.000 --> 00:36:14.159
the leaders of our government start start targeting the institutions
551
00:36:14.199 --> 00:36:19.480
of freedom because they don't want to be checked. Even
552
00:36:19.519 --> 00:36:22.800
if we agree with the president, you know, in many
553
00:36:22.840 --> 00:36:25.280
of the things he's trying to do, I think we
554
00:36:25.360 --> 00:36:29.639
all have an interest in protecting the institutions of civil society.
555
00:36:29.760 --> 00:36:31.840
One of those is the academy, one of those is
556
00:36:31.880 --> 00:36:34.679
the press, one of those is the is the legal profession.
557
00:36:34.719 --> 00:36:35.679
And they've gone after all.
558
00:36:37.320 --> 00:36:40.159
Let me take I think it's a little Orwellian to
559
00:36:40.239 --> 00:36:44.360
call higher education and institution of freedom. But regardless of that,
560
00:36:44.400 --> 00:36:48.559
and setting aside accusations of bad lawyering, because I think
561
00:36:48.599 --> 00:36:51.119
that's neither here nor there in terms of you know,
562
00:36:51.159 --> 00:36:56.280
what we're really discussing. But I fully agree that just
563
00:36:56.360 --> 00:36:59.239
having a protest is is.
564
00:36:59.159 --> 00:37:00.679
Not titles violation.
565
00:37:01.199 --> 00:37:04.000
I agree that the government doesn't have an interest in
566
00:37:04.239 --> 00:37:10.280
enforcing schools internal rules unless something rises to the level
567
00:37:10.440 --> 00:37:14.400
of a Title six or other federal violation. Absolutely, But
568
00:37:14.599 --> 00:37:18.519
you know, UCLA is under a consent decree. I was
569
00:37:18.559 --> 00:37:20.719
going to appeal that until it was shamed into dropping
570
00:37:20.760 --> 00:37:23.360
its appeal for doing all sorts of things to deny
571
00:37:23.440 --> 00:37:27.519
access and prevent the intimidation of Jewish students and whatever else.
572
00:37:28.320 --> 00:37:31.159
Berkeley just signed a consent decree, not with the government,
573
00:37:31.199 --> 00:37:35.119
with the Brandei Center over all sorts of you know,
574
00:37:35.199 --> 00:37:39.559
anti Zionist, antisemitic policies that were adopted. Other things, there's
575
00:37:39.599 --> 00:37:42.440
a punished payment of damages and things. So there are
576
00:37:42.639 --> 00:37:49.239
very real violations that have gone on, intrusion with student programs,
577
00:37:49.239 --> 00:37:53.440
denial of access, to denial equal opportunity to educational programs
578
00:37:53.440 --> 00:37:56.599
in the language of Title six based on protected categories.
579
00:37:56.840 --> 00:38:01.960
Whether the administration has sufficiently documented those Frankly, I haven't
580
00:38:02.000 --> 00:38:06.360
fisked all of the documents, but certainly once the investigations
581
00:38:06.400 --> 00:38:09.000
were concluded, not back in April of last year with
582
00:38:09.039 --> 00:38:11.639
the demand letters, but once the results started coming in
583
00:38:11.880 --> 00:38:15.400
from the various investigations in the I don't know, five
584
00:38:15.480 --> 00:38:20.039
dozen schools or something that were uh the labeled for investigation,
585
00:38:20.320 --> 00:38:22.800
I think there was real evidence there. Now, whether that
586
00:38:22.880 --> 00:38:25.480
made it in or made it in properly into the
587
00:38:25.519 --> 00:38:29.840
documents that were eventually uh set at the feet of
588
00:38:30.239 --> 00:38:34.360
these leaders maybe maybe not. I just haven't haven't gone
589
00:38:34.400 --> 00:38:37.920
into that that into that fisking, But overall, the point
590
00:38:38.079 --> 00:38:42.840
of going after the week leadership and the uneven uh
591
00:38:43.519 --> 00:38:47.840
enforcement of federally relevant rules I think very much is
592
00:38:47.840 --> 00:38:48.639
that issue.
593
00:38:49.000 --> 00:38:50.679
And I just say one thing I want to sort
594
00:38:50.679 --> 00:38:52.519
of cide with Illy a little bit on this, right.
595
00:38:52.519 --> 00:38:54.599
I've been like, like I said, I was sort of
596
00:38:54.760 --> 00:38:58.440
two minds on this where I part ways with Professor
597
00:38:58.519 --> 00:39:02.519
Cole is I think the federal government has an interest
598
00:39:02.880 --> 00:39:03.679
in how.
599
00:39:03.440 --> 00:39:06.440
The internal rules of an institution are enforced.
600
00:39:06.880 --> 00:39:11.480
If they are enforced selectively and discriminatorily, I believe that's
601
00:39:11.599 --> 00:39:16.480
a very relevant consideration. So if encampments by the you know,
602
00:39:17.880 --> 00:39:22.840
by the pro Palesidian groups are given Lenian treatment, but
603
00:39:23.039 --> 00:39:26.199
Turning Point USA has given harsh treatment, I think there's
604
00:39:26.199 --> 00:39:29.840
something to be said there that this is serious discrimination
605
00:39:30.360 --> 00:39:34.239
and it shows a hostility towards some groups versus others.
606
00:39:34.480 --> 00:39:37.719
If I let Palthdian groups come into the classroom and
607
00:39:37.760 --> 00:39:41.079
disrupt class, am I denying Jewish students equal access to
608
00:39:41.119 --> 00:39:41.719
that class?
609
00:39:42.280 --> 00:39:44.679
But I'll kick the Turning Point folks out.
610
00:39:44.920 --> 00:39:48.079
I absolutely think that's infringing upon equal access to classes
611
00:39:48.320 --> 00:39:49.719
if you do it selectively.
612
00:39:50.599 --> 00:39:52.280
And while I appreciate the.
613
00:39:52.239 --> 00:39:55.000
Notion Presor Cole's notion of a you know, the federal
614
00:39:55.000 --> 00:39:58.840
government doesn't enforce all of groups evenly, either, that is true.
615
00:39:59.039 --> 00:40:00.440
We have selective.
616
00:40:00.079 --> 00:40:03.599
Enforcement acrosscutorial discretion. I however, have called that a First
617
00:40:03.599 --> 00:40:07.920
Amendment violation. I think much of that discretion is improperly
618
00:40:08.000 --> 00:40:11.960
given deference where it deserves none, because it's clear, and
619
00:40:12.039 --> 00:40:13.079
I think we see it today.
620
00:40:13.280 --> 00:40:15.039
I think we saw it out of the bid the administration.
621
00:40:15.480 --> 00:40:17.760
I don't think this is unique to any given administration,
622
00:40:17.800 --> 00:40:21.039
though it is unique. Obviously there's a recency, So there's
623
00:40:21.039 --> 00:40:24.519
a recency bias obviously for everyone who talks about stuff.
624
00:40:25.400 --> 00:40:28.320
So I agree with Ilia that those things matter.
625
00:40:30.000 --> 00:40:34.239
I also think that one can have proper time place
626
00:40:34.320 --> 00:40:38.239
matter stuff. Having protests on the quad where people literally
627
00:40:38.280 --> 00:40:40.320
have to walk around campus.
628
00:40:40.960 --> 00:40:44.639
At all times of day and night is a little ridiculous.
629
00:40:44.159 --> 00:40:47.840
If you think Jewish students need to feel safe, and
630
00:40:47.920 --> 00:40:49.920
suggesting that globalized into.
631
00:40:49.800 --> 00:40:52.440
FATA is not necessarily a threat.
632
00:40:53.360 --> 00:40:57.280
It's like saying back to Africa with the Somali's, Yeah,
633
00:40:57.320 --> 00:40:59.000
it's not necessarily a threat.
634
00:40:59.239 --> 00:41:03.480
Maybe it's out of the for reforming our immigration laws.
635
00:41:03.679 --> 00:41:04.760
But now you're on a.
636
00:41:04.760 --> 00:41:07.920
Campus with a thousand white folks chatting back to Africa.
637
00:41:08.039 --> 00:41:09.039
Back to Africa.
638
00:41:09.119 --> 00:41:11.920
I don't think anybody thinks that's a safe learning environment
639
00:41:12.199 --> 00:41:16.360
for so Ali's. So let's not be too cute about
640
00:41:16.519 --> 00:41:19.719
what's political speech and what's not in the context of
641
00:41:19.760 --> 00:41:24.559
a non public forum or a limited public forum, if
642
00:41:24.559 --> 00:41:26.800
you want to think of universities that way, they have
643
00:41:27.000 --> 00:41:30.360
leeway to impose time placed man of restrictions. If the
644
00:41:30.360 --> 00:41:34.280
federal government demanded that they impose time placed man of restrictions,
645
00:41:34.599 --> 00:41:38.400
that would probably survive constitutional scrutiny in certain instances, according
646
00:41:38.440 --> 00:41:40.400
to standard First Amendment analysis.
647
00:41:41.079 --> 00:41:45.800
So if I could let me say two things. First,
648
00:41:46.679 --> 00:41:48.639
we welcome questions from the audience, and we'll turn to
649
00:41:48.639 --> 00:41:50.400
those in a moment, So please use the Q and
650
00:41:50.440 --> 00:41:53.920
a feature. And second, for Professor Cole, I have a
651
00:41:54.000 --> 00:41:55.679
question for you, and then I'd like to open it
652
00:41:55.760 --> 00:41:57.400
up to the others as well, and then we'll turn
653
00:41:57.440 --> 00:42:01.360
to audience questions. The question that I have is you spoke,
654
00:42:01.599 --> 00:42:05.559
and I think there's some agreement on the panel about slogans,
655
00:42:05.920 --> 00:42:08.679
generally speaking, protests in and of themselves, of course, not
656
00:42:08.760 --> 00:42:13.679
being Title six violations. As I understand it, Title six
657
00:42:13.760 --> 00:42:20.840
hostile environment claims typically do encompass not as prohibited conduct,
658
00:42:21.440 --> 00:42:25.920
but as contextual evidence supporting students' fears, that sort of thing,
659
00:42:26.800 --> 00:42:30.519
evidence regarding protests and regarding all kinds of speech that
660
00:42:30.639 --> 00:42:33.400
may not in and of itself be a violation. I mean,
661
00:42:33.440 --> 00:42:36.079
I think that's been a hallmark of civil rights enforcement
662
00:42:36.599 --> 00:42:39.239
under Title six and other programs for many many years
663
00:42:39.280 --> 00:42:42.119
at least dealing with hostile environment type claims.
664
00:42:42.440 --> 00:42:44.760
And so my question to you is is that right?
665
00:42:44.840 --> 00:42:47.280
And is there anything different about the way that the
666
00:42:47.280 --> 00:42:51.760
Trump administration is treating that sort of evidence in these cases?
667
00:42:51.880 --> 00:42:54.639
In other words, what is the law and is that
668
00:42:54.679 --> 00:42:56.800
really what? And is that what the Trump administration is
669
00:42:56.840 --> 00:42:57.400
doing here?
670
00:42:57.960 --> 00:42:58.440
Yeah?
671
00:43:00.079 --> 00:43:02.000
Yeah, I'll answer that, but let me let me let
672
00:43:02.000 --> 00:43:06.039
me just first engage with the conversation that Eric and
673
00:43:06.480 --> 00:43:09.760
Ilia engage with. You know, so, first of all, I
674
00:43:10.039 --> 00:43:13.320
do not think the government has any any interest in
675
00:43:13.559 --> 00:43:18.280
enforcing reasonable time, place, and manner restrictions that private universities
676
00:43:18.360 --> 00:43:22.719
have the freedom to impose. That public universities have the
677
00:43:22.800 --> 00:43:26.360
freedom to impose, but the federal government has no. There's
678
00:43:26.360 --> 00:43:30.119
no First Amendment, you know, free Speech Act that sort
679
00:43:30.159 --> 00:43:34.599
of makes the government the overseer of institutions with respect
680
00:43:34.639 --> 00:43:37.239
to their reasonable time, place, and manner restrictions. They can
681
00:43:37.280 --> 00:43:40.239
have them, they should have them, I think most of
682
00:43:40.280 --> 00:43:45.559
them do. Are they always applied, you know, fairly and consistently?
683
00:43:45.719 --> 00:43:45.760
No?
684
00:43:46.679 --> 00:43:50.079
Is that an issue most of the time? No, So,
685
00:43:50.599 --> 00:43:53.400
you know, you gave the example Eric of you know,
686
00:43:53.440 --> 00:43:58.039
if they turned if they forced a rule against turning point.
687
00:43:58.880 --> 00:44:02.719
But they allow out uh, you know, pro Palestinians to
688
00:44:04.599 --> 00:44:07.880
violate the same rule. You know that that's wrong. I
689
00:44:08.159 --> 00:44:11.639
would be against that. But it doesn't violate any any law.
690
00:44:11.800 --> 00:44:14.320
It doesn't bother any federal law. It's not anti Semitic,
691
00:44:15.079 --> 00:44:19.559
it's not treating. If you if you allowed pro Palestinian
692
00:44:19.599 --> 00:44:22.760
students to do one thing and and pro and denied
693
00:44:23.039 --> 00:44:25.960
pro Israeli students to do the other, then that comes closer.
694
00:44:26.440 --> 00:44:30.599
That comes closer because it might be based on Jewish identity,
695
00:44:30.679 --> 00:44:33.639
or might be based on disagreements about the two states
696
00:44:33.639 --> 00:44:36.400
that are involved. But if you could distinguish those, that would.
697
00:44:36.159 --> 00:44:36.639
Be a problem.
698
00:44:36.639 --> 00:44:39.400
But it's just not the case that the federal government
699
00:44:39.400 --> 00:44:42.679
has any interest in enforcing reasonable time, place, and manner
700
00:44:42.679 --> 00:44:47.280
restrictions or the failure to enforce those in a fulsome way,
701
00:44:47.320 --> 00:44:49.519
even if even if you think as a policy matter,
702
00:44:49.559 --> 00:44:55.960
they should be. With respect to hostile learning environment claims,
703
00:44:56.280 --> 00:44:59.679
you know that is a This is a one of
704
00:44:59.719 --> 00:45:02.920
the real difficult areas of Title six. It's one that
705
00:45:03.000 --> 00:45:07.079
conservatives have most complained about, and I think for good reason,
706
00:45:07.119 --> 00:45:11.159
because hostile learning environment, hostile work environment is so open ended.
707
00:45:11.880 --> 00:45:15.039
Eugene Vollik has been a major major critic of this
708
00:45:15.119 --> 00:45:19.039
doctrine because it's vague, and you know, and and and
709
00:45:19.519 --> 00:45:24.119
how do you draw the line between offensive speech or
710
00:45:24.239 --> 00:45:30.719
anti woke speech which we should protect. Like Ilia's speech,
711
00:45:30.760 --> 00:45:34.639
which I defended when Georgetown, you know, was considering whether
712
00:45:34.760 --> 00:45:38.079
to withdraw its offer. It didn't, but you know, I
713
00:45:38.599 --> 00:45:42.280
defended it very strongly, very publicly, because I thought, although
714
00:45:42.320 --> 00:45:47.079
what Ilia said was racist and sexist, it was not
715
00:45:47.599 --> 00:45:50.559
a discriminatory and it was on his own time, and
716
00:45:50.599 --> 00:45:52.719
it was within the area of his expertise, and he
717
00:45:52.760 --> 00:45:56.400
has the right to be racist sexist. It wasn't directed
718
00:45:56.440 --> 00:46:00.000
in any particular person, It didn't create a hostile learning environment.
719
00:46:00.760 --> 00:46:03.760
So so, you know, if Elia can do that right,
720
00:46:03.840 --> 00:46:06.239
if he can make that kind of statement which the
721
00:46:06.440 --> 00:46:10.159
vast majority of the community of students here at Georgetown
722
00:46:10.559 --> 00:46:14.679
felt was deeply racist and deeply sexist, if he has
723
00:46:14.679 --> 00:46:18.039
the right to do that, then I think someone has
724
00:46:18.039 --> 00:46:19.960
the right to put up a sign that says globalize
725
00:46:19.960 --> 00:46:22.800
the Indefada, which I think for many people just means
726
00:46:22.880 --> 00:46:28.280
I support a you know, support a world movement to
727
00:46:28.320 --> 00:46:34.119
support Palestinians, and Indefada is fighting for palest Indians self determination.
728
00:46:34.199 --> 00:46:37.199
Now other people could read that in a different way, absolutely,
729
00:46:37.519 --> 00:46:40.519
but plenty of people read it that way, and it's
730
00:46:40.519 --> 00:46:46.000
certainly not anti semitism or anti Semitic discrimination to say that.
731
00:46:46.079 --> 00:46:47.360
So if I'm a student on.
732
00:46:47.480 --> 00:46:51.199
The you know, David, I think it's irresponsible for a
733
00:46:51.199 --> 00:46:55.559
professor at Georgetown who's a high official ALU to say
734
00:46:55.639 --> 00:46:59.960
that globalized at a time when we have increased isla
735
00:47:00.000 --> 00:47:04.239
amised attacks all over the world is patty cake. And
736
00:47:04.400 --> 00:47:08.440
just you know, I'm pro Palestinian, and no matter how
737
00:47:08.480 --> 00:47:11.880
you try to sugarcoat this, it's not about condemning speech.
738
00:47:11.920 --> 00:47:16.159
And you're absolutely right that the rules about hostile educational
739
00:47:16.280 --> 00:47:20.639
environment are difficult, just like the rules on the jurisprudence
740
00:47:20.639 --> 00:47:24.000
about harassment and intimidation are very fact specific under the
741
00:47:24.079 --> 00:47:28.840
data standard and whatever else. But you cannot say that
742
00:47:28.920 --> 00:47:33.840
this is just you know, speech expression of you know,
743
00:47:34.519 --> 00:47:36.480
strongly held political views.
744
00:47:37.079 --> 00:47:39.400
Well, I think it is, and we have a disagreement
745
00:47:39.400 --> 00:47:41.679
about that. But I think what is clear under the
746
00:47:41.719 --> 00:47:44.840
Constitution is that if I go out on the street
747
00:47:44.840 --> 00:47:47.320
corner and put up a sign saying globalize, the Dafada
748
00:47:47.440 --> 00:47:49.960
and the government tried to do anything against me for
749
00:47:50.079 --> 00:47:52.920
doing that, I would have a First Amendment claim. And
750
00:47:52.960 --> 00:47:57.559
if I'm a student on the campus at Berkeley, on
751
00:47:57.679 --> 00:48:00.239
the free speech part of the campus where people or
752
00:48:00.320 --> 00:48:03.519
you know, speak freely and there's no there's no sort
753
00:48:03.559 --> 00:48:09.119
of interference with educational uh, you know, pedagogy in the classroom,
754
00:48:09.599 --> 00:48:13.039
and I put that up and the school punishes me
755
00:48:13.119 --> 00:48:15.800
for that, the student, I have a First Amendment claim
756
00:48:15.880 --> 00:48:18.480
against the university because it's a state actor and it
757
00:48:18.519 --> 00:48:22.039
can't violate the First Amendment either. I agree if a
758
00:48:22.159 --> 00:48:27.079
thousand people are are are doing this, you know, for
759
00:48:27.159 --> 00:48:29.239
a long term way, in a long term way, that's
760
00:48:29.280 --> 00:48:32.199
going to create a hostile learning environment, and at some
761
00:48:32.320 --> 00:48:35.840
point that triggers the obligation of the state to respond.
762
00:48:36.199 --> 00:48:39.639
But it's unclear exactly what the obligation of the state
763
00:48:39.760 --> 00:48:41.760
is to respond. I don't think the obligation of the
764
00:48:41.800 --> 00:48:45.599
states to respond is to punish the students for saying
765
00:48:45.679 --> 00:48:48.199
something that each one of them has an individual right
766
00:48:48.280 --> 00:48:51.039
to say on his own. I think the response has
767
00:48:51.079 --> 00:48:53.880
to be more nuanced. It has to be about ensuring,
768
00:48:54.280 --> 00:48:57.519
you know, students that we support you, that you know,
769
00:48:57.599 --> 00:49:00.760
making sure that there's no interference with that excess et cetera,
770
00:49:00.840 --> 00:49:04.679
et cetera. But this is a very very difficult area,
771
00:49:05.000 --> 00:49:10.559
and it's an area that's been relatively rarely litigated because
772
00:49:11.079 --> 00:49:16.000
drawing the line between protected offensive speech and I'm granting
773
00:49:16.400 --> 00:49:21.000
globalizing offensive okay, granting its offensive justice, I'm granting what
774
00:49:21.039 --> 00:49:22.280
you said was offensive.
775
00:49:22.480 --> 00:49:25.960
If you're illiterate and wilfully disingenuous, then yes, what I
776
00:49:25.960 --> 00:49:27.280
said is tremendously offensive.
777
00:49:27.320 --> 00:49:27.360
No.
778
00:49:27.880 --> 00:49:31.639
I mean, look, I don't think that the you know,
779
00:49:31.920 --> 00:49:35.599
I've just taught at Georgetown for thirty years.
780
00:49:35.760 --> 00:49:37.440
But that's that's not the point. I don't want to
781
00:49:37.440 --> 00:49:38.519
litigate my thin it's all.
782
00:49:38.400 --> 00:49:42.800
Written here, are illiterate or disingenuous. I think they honestly
783
00:49:42.840 --> 00:49:45.920
felt that what you said was deeply offensive on sex.
784
00:49:46.039 --> 00:49:48.480
Yes, the standard argument against the front of that anyway,
785
00:49:48.519 --> 00:49:49.119
that's we're getting.
786
00:49:49.159 --> 00:49:51.519
We're getting far afield not getting what you're saying.
787
00:49:51.320 --> 00:49:53.760
Is exactly what you're saying that the GOLMGE should not
788
00:49:53.880 --> 00:49:54.960
go after the students.
789
00:49:55.199 --> 00:49:58.119
What And you're right, the government shouldn't go after students.
790
00:49:58.239 --> 00:50:01.239
The government should go after the university for not maintaining
791
00:50:01.280 --> 00:50:07.000
that learning environment where everyone can participate and have access
792
00:50:07.199 --> 00:50:08.119
to these programs.
793
00:50:08.239 --> 00:50:11.159
That's where the government should be stepping in.
794
00:50:12.199 --> 00:50:16.480
Might I just chime in, You know, it's.
795
00:50:16.360 --> 00:50:18.920
Funny, I'm the first amendment guy, the crazy first memic
796
00:50:18.880 --> 00:50:23.760
guy here, But I actually think that sometimes speech in.
797
00:50:23.719 --> 00:50:25.519
The wrong place and the wrong time, in the.
798
00:50:25.440 --> 00:50:30.559
Wrong manner, even if otherwise fully protected in the public square,
799
00:50:31.800 --> 00:50:36.199
can indeed be a denial of access equal access to things.
800
00:50:36.239 --> 00:50:40.760
If somebody stands up and screams at the Christian students
801
00:50:40.800 --> 00:50:44.119
thing baby killers, you know, you kill mothers, you kill mothers,
802
00:50:44.199 --> 00:50:48.239
use lying bastards or vice versa. At the women's you know,
803
00:50:48.760 --> 00:50:51.760
group of women's hall, baby killers, baby killers, and you
804
00:50:51.800 --> 00:50:53.800
do that in front of the hall, and you make
805
00:50:53.840 --> 00:50:56.360
them pass through the gauntlet. It's like the Face Act,
806
00:50:56.360 --> 00:50:58.719
whether you apply it to churches, whether you apply it
807
00:50:58.719 --> 00:51:03.440
to abortion clinics. That harms access. And I don't think
808
00:51:03.559 --> 00:51:08.599
universities are the public square. They're not public parks. They're
809
00:51:08.719 --> 00:51:12.280
limited forms with a very specific purpose. And yes, they
810
00:51:12.280 --> 00:51:15.639
have the right to adopt or not adopt time placed
811
00:51:15.679 --> 00:51:19.079
man of restrictions. But if they don't adopt them and
812
00:51:19.480 --> 00:51:24.599
that leads to a hostile environment, that is a relevant consideration.
813
00:51:25.119 --> 00:51:26.199
And if they adopt.
814
00:51:25.960 --> 00:51:29.480
Them, but selectively enforce them, and that leads to a
815
00:51:29.519 --> 00:51:34.320
hostile environment, such that Jews can't go to class for
816
00:51:34.519 --> 00:51:38.039
fear of being assaulted, they can't get sleep, they can't
817
00:51:38.039 --> 00:51:41.159
go to the library because there's someone with a bullhorn there.
818
00:51:41.840 --> 00:51:45.480
I'm sorry. That is not free speech, even in my book,
819
00:51:46.599 --> 00:51:49.960
Agree one hundred agree if it's a hostile learning environment.
820
00:51:50.039 --> 00:51:55.519
My point was that not every statement is a hostile
821
00:51:55.559 --> 00:51:58.840
learning environment, and that drawing the line between an offensive
822
00:51:58.880 --> 00:52:03.800
statement that offensive on sexist or racist or religious grounds
823
00:52:03.840 --> 00:52:05.880
and a hostelry environment is Yeah.
824
00:52:05.920 --> 00:52:07.639
But that's a bit of a straw man. I don't
825
00:52:07.639 --> 00:52:08.400
think the administration.
826
00:52:10.679 --> 00:52:13.119
I'm just saying they did it at Dartmouth, and I
827
00:52:13.119 --> 00:52:15.440
thought they they should kick the students out of Dartmouth
828
00:52:15.519 --> 00:52:17.880
who took over Baker Library back when I was a student.
829
00:52:18.159 --> 00:52:20.840
And if they're taking over the library here, they're interfering
830
00:52:20.880 --> 00:52:24.559
with people's education. And if they're screaming Israeli kill babies
831
00:52:24.599 --> 00:52:27.639
and Jews suck, I think we got a decent time.
832
00:52:27.679 --> 00:52:30.039
So you've just added You've just added a lot of facts,
833
00:52:30.199 --> 00:52:34.400
Eric that have not been established. They say global I
834
00:52:34.440 --> 00:52:36.280
think we have a decent argument. If they took the
835
00:52:36.320 --> 00:52:37.000
library if.
836
00:52:36.920 --> 00:52:39.639
They show up with the red O, their hands painted red.
837
00:52:39.679 --> 00:52:41.159
I mean, all of these things have happened.
838
00:52:41.599 --> 00:52:45.159
If they take over the library and say, you know,
839
00:52:45.719 --> 00:52:50.760
stop the Iran War, is there any federal law that
840
00:52:50.880 --> 00:52:53.599
requires the school? And I think the school should not
841
00:52:53.760 --> 00:52:56.079
let them take over the library. But if they take
842
00:52:56.119 --> 00:52:58.480
over the libraries, they stop the Iran War, and it
843
00:52:58.760 --> 00:53:02.280
precludes access by Jewish students and all and many other
844
00:53:02.320 --> 00:53:05.599
students of every other kind to use the library. Well,
845
00:53:05.599 --> 00:53:07.320
I think that I's interfering with education.
846
00:53:07.519 --> 00:53:11.239
Yes, the way I'm doing so on the basis of race,
847
00:53:11.519 --> 00:53:12.880
probably not right.
848
00:53:13.119 --> 00:53:15.440
And so then and then there's no there's nothing the
849
00:53:15.440 --> 00:53:17.400
federal government has to say about it. You you know,
850
00:53:17.480 --> 00:53:20.400
your alumni can say something, student can say something, but
851
00:53:20.480 --> 00:53:22.360
the federal government has no interest.
852
00:53:22.119 --> 00:53:24.519
In That's what I think, Eliot, and I disagree with
853
00:53:24.559 --> 00:53:31.920
you on whether saying Israel such shouldn't exist is or
854
00:53:32.000 --> 00:53:36.000
isn't anti Jewish or anti ethnicity or anti country of
855
00:53:36.000 --> 00:53:38.880
origin or whatever else is covered by titles.
856
00:53:38.360 --> 00:53:42.360
In theory, anti Zionism doesn't have to be anti Semitic.
857
00:53:42.400 --> 00:53:44.480
In practice of the time, it is.
858
00:53:45.119 --> 00:53:50.559
Well, I know plenty of of of of of Jewish
859
00:53:50.760 --> 00:53:53.519
very thoughtful Jewish people who are anti Zionists and don't
860
00:53:54.280 --> 00:53:56.440
used to be anti Semitic, and I and I don't
861
00:53:56.440 --> 00:53:59.119
think they're you know, victims of false consciousness. I think
862
00:53:59.159 --> 00:54:02.079
they draw distinction and and and I and you know,
863
00:54:02.159 --> 00:54:05.760
and I didn't say Israel sucks. I said globalize the Indefada.
864
00:54:05.800 --> 00:54:07.599
And I think there's a distinction between them.
865
00:54:07.480 --> 00:54:09.840
Which is worse than saying Israel sucks.
866
00:54:10.679 --> 00:54:12.920
You know what you mean. If you mean it to
867
00:54:12.960 --> 00:54:19.119
say it doesn't support Palestinian self determination, then I don't
868
00:54:19.119 --> 00:54:20.039
think it's worse.
869
00:54:20.000 --> 00:54:30.079
If because it would improve the global economy, giving a
870
00:54:30.159 --> 00:54:32.960
particular reading to globalizing divider.
871
00:54:32.960 --> 00:54:36.320
It doesn't say kill Jewish people, it says support.
872
00:54:36.440 --> 00:54:40.440
It says kill everybody who's not part of the longest Uh.
873
00:54:40.960 --> 00:54:43.719
It's worth defend. But but I think the very fact
874
00:54:43.760 --> 00:54:47.559
that you guys immediately go from a general statement of
875
00:54:48.199 --> 00:54:53.360
universal support for struggle for Palestinian self determination to kill
876
00:54:53.440 --> 00:54:57.400
all Jewish people suggests that there is a problem.
877
00:54:57.000 --> 00:55:01.159
With just that we read history and see how this works. Well,
878
00:55:01.239 --> 00:55:02.639
I just know practice it was.
879
00:55:03.760 --> 00:55:07.880
I'm not suggesting that River to the Sea is necessarily
880
00:55:08.320 --> 00:55:10.679
kill all the Jews they're supposed to kick them out
881
00:55:10.880 --> 00:55:13.719
and let us take over globalize the anti fat I
882
00:55:13.719 --> 00:55:17.519
think takes that one extra step. Where we understood what
883
00:55:17.559 --> 00:55:21.679
the dafada was. It's not like we're forgetting.
884
00:55:21.199 --> 00:55:24.599
What the end faal was, and to pretend that it means.
885
00:55:24.440 --> 00:55:27.719
Something other than that is like saying, well, the final solution,
886
00:55:27.880 --> 00:55:28.559
I didn't mean.
887
00:55:28.480 --> 00:55:31.840
Hitler's final solution. I meant a different final solution.
888
00:55:32.880 --> 00:55:36.000
Yeah, so why don't we move on to why why
889
00:55:36.000 --> 00:55:38.480
don't we move on to final statements? Since we're nearly
890
00:55:38.599 --> 00:55:41.480
at the end of the hour, why don't we start
891
00:55:41.760 --> 00:55:42.239
with ilia.
892
00:55:45.360 --> 00:55:48.639
Look, I'm I'm not a member of the administration. I'm
893
00:55:48.679 --> 00:55:53.639
not obligated in ad to defend everything that they're doing.
894
00:55:53.679 --> 00:55:57.559
I think there have been some missteps, more more on
895
00:55:57.599 --> 00:56:01.559
the tactical front than in terms of the overall strategy.
896
00:56:02.440 --> 00:56:05.519
But they have a limited time to try to hold
897
00:56:06.280 --> 00:56:08.519
the university officials feet to the fire.
898
00:56:09.880 --> 00:56:10.960
And uh.
899
00:56:11.400 --> 00:56:15.039
You know, this illiberal takeover that we've seen in the
900
00:56:15.079 --> 00:56:18.480
last decade or so, as as distinct from the long
901
00:56:18.599 --> 00:56:21.719
term faculty bias. Uh, And indeed, you know there is
902
00:56:21.760 --> 00:56:23.880
an aspect of it in that the younger faculty are
903
00:56:23.920 --> 00:56:26.920
more activists than like the older Boomer, you know, a
904
00:56:27.000 --> 00:56:32.880
c l U liberal types. But nevertheless, despite certain missteps
905
00:56:32.960 --> 00:56:36.639
or oversteps or what have you, the administration is rightly
906
00:56:37.639 --> 00:56:41.719
going after the anti Semitism that has flared up because
907
00:56:41.760 --> 00:56:47.480
of so much pathology in university systems and cultures underneath.
908
00:56:47.800 --> 00:56:50.719
Whether they could be lawyering in a slightly different way,
909
00:56:50.760 --> 00:56:53.039
whether they should be doing other things, I don't know.
910
00:56:53.039 --> 00:56:57.239
They're throwing a lot on the table, and you know,
911
00:56:57.679 --> 00:56:59.639
four years is not going to be enough. It's not
912
00:56:59.719 --> 00:57:03.400
like the whether the DEI administrators or the illiberal professors
913
00:57:03.440 --> 00:57:06.320
or anybody else is going to go away. And whatever
914
00:57:06.400 --> 00:57:08.440
the equivalent now have learned to code is now that
915
00:57:08.480 --> 00:57:10.960
we don't need coders anymore in the ai AI world. So,
916
00:57:12.039 --> 00:57:15.119
given the federal dollars at play, and we're not in
917
00:57:15.159 --> 00:57:18.079
a first order world where it's pure freedom of association,
918
00:57:18.519 --> 00:57:21.920
given strings attached to federal dollars, the government has a
919
00:57:21.960 --> 00:57:25.280
lot of authority to protect civil rights, and that is
920
00:57:25.400 --> 00:57:28.119
largely what it's doing with respect to antisemitism.
921
00:57:28.679 --> 00:57:30.039
Thank you, Leah eric.
922
00:57:32.039 --> 00:57:35.840
I agree that many efforts to come back anti Semitism
923
00:57:36.960 --> 00:57:40.000
are worthwhile and should be pursued. I just don't think
924
00:57:40.199 --> 00:57:43.920
that describes what's happening. I don't think we should be
925
00:57:44.000 --> 00:57:47.719
able to use federal dollars as leveraged quite.
926
00:57:47.440 --> 00:57:49.360
In the same way that they are being used.
927
00:57:49.760 --> 00:57:52.320
I think there are better ways to ask for time,
928
00:57:52.400 --> 00:57:56.920
place manners, frictions that guarantee equal access. I agree with
929
00:57:57.000 --> 00:58:00.559
David Cole it that Hafel environment in the AD is
930
00:58:00.599 --> 00:58:03.679
a little too squishy. I would be more precise about it,
931
00:58:03.719 --> 00:58:06.719
given my First Amendment sensibilities. I think of myself as
932
00:58:06.719 --> 00:58:10.199
a sixties ACLU child, so I'm totally there with Professor
933
00:58:10.239 --> 00:58:10.719
Cole on.
934
00:58:10.679 --> 00:58:14.440
Those kinds of things. But I would very.
935
00:58:14.320 --> 00:58:17.000
Much like to see them enforth even handedly. And it
936
00:58:17.079 --> 00:58:20.159
seems like we immediately flip flop on who am I
937
00:58:20.199 --> 00:58:23.360
protecting today and who am I ignoring with every change
938
00:58:23.360 --> 00:58:26.360
in administration, and that strikes me as a recipe for
939
00:58:26.440 --> 00:58:31.679
disaster and for free speech problems. I would limit the
940
00:58:31.719 --> 00:58:36.079
government's ability to use these strings, and particularly to use
941
00:58:36.119 --> 00:58:38.920
these strings in sort of a shoot first, figure out
942
00:58:38.920 --> 00:58:42.119
what your theory is later kind of way, where if
943
00:58:42.119 --> 00:58:45.760
we yank nine billion dollars, Harvard will either die or.
944
00:58:45.719 --> 00:58:48.800
Have to settle before any of this ever gets litigan.
945
00:58:49.280 --> 00:58:52.679
That strikes me as the sort of government bigfooting.
946
00:58:53.280 --> 00:58:55.079
That is exactly the problem.
947
00:58:55.119 --> 00:58:58.480
It happened with the law firms, it happened with some universities,
948
00:58:58.920 --> 00:59:01.800
and I think to give them that kind of club
949
00:59:02.360 --> 00:59:05.280
to hit you with first and pretend that it'll all
950
00:59:05.320 --> 00:59:07.400
be sorted out in the wash five years or four
951
00:59:07.480 --> 00:59:12.480
years or three years later. That's that's not a recipe
952
00:59:12.519 --> 00:59:15.280
for respecting the First Amendment. It's a recipe for abusing it.
953
00:59:16.199 --> 00:59:18.000
Thank you, Eric. That's for cool to find a word.
954
00:59:18.880 --> 00:59:24.679
Yeah. So, I think whether universities are illiberal or not,
955
00:59:24.800 --> 00:59:31.920
as Ilia has charged here, it is not an excuse
956
00:59:32.000 --> 00:59:36.639
for government to be illiberal. It is not a justification
957
00:59:36.840 --> 00:59:41.639
for the government to use its official coercive powers. It's
958
00:59:42.239 --> 00:59:49.079
billions of dollars to try to control a central institution
959
00:59:49.400 --> 00:59:54.039
of civil society. I think we should all be interested
960
00:59:54.199 --> 01:00:01.320
in preserving freedom of speech for those institutions that play
961
01:00:01.440 --> 01:00:05.880
a central role in preserving our democracy, and those are
962
01:00:06.079 --> 01:00:10.960
the institutions of civil society, nonprofit sector like the Federalist
963
01:00:11.079 --> 01:00:15.960
Society and the A C. L U, universities, the legal profession,
964
01:00:17.079 --> 01:00:21.840
the press, and you know they The administration has not
965
01:00:22.239 --> 01:00:27.360
gone yet gone after the nonprofit sector, although it's threatened
966
01:00:27.400 --> 01:00:29.440
to it. I don't think it has the same kinds
967
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of tools available to it, but it's gone after the
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rest in what is decidedly an illiberal campaign. And I
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think that should concern all of us. And and you know,
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just as I am concerned by illiberal universities, even when
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they're advancing views that are sort of on my side
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of the aisle, I think conservatives should be concerned when
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the President of the United States is advancing even if
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it's advancing he's advancing views is that many conservatives are
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at least some conservative support. The way he is doing
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it strikes at the core of what is central to
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a functioning democracy, and that is our civil society, and
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universities are a central part of that.
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Great well, thank you to our pandelists, and thank you
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to the Federal Society for hosting this discussion.
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Was a very spirited debate.
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To say the least, sounds look for an agreement to
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defund the universities so there aren't these strings to pull.
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I'm half of the powerless Society. Thank you so much
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to Professor Cole, mister Chappi, and mister Shapiro for speaking
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with us today, and to mister Grossman for moderating. We're
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so grateful for your time and expertise on this important topic.
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Thank you to our audience for joining us. We really
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appreciate your participation. You can also stay up to date
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with other announcements and upcoming webinars on our website That's
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01:01:57.519 --> 01:02:01.280
not out word Thinking. Once more for tuning, Amir Journed.
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Thank you for listening to this episode of FEDSOC Forums,
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01:02:04.960 --> 01:02:08.119
a podcast of the Federal Societies Practice Groups. For more
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01:02:08.119 --> 01:02:11.360
information about the Federal Society, the practice groups, and to
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01:02:11.400 --> 01:02:14.280
become a Federal Society member, please visit our website at
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01:02:14.320 --> 01:02:15.639
fedsoc dot org.