Universities Must Tolerate Anti-Israel Protests, But Regulate Them to Protect Jewish Students

Doing so will require an adept balancing of the competing interests at stake that universities have failed to execute to date.

The anti-Israel/pro-Palestinian protests and universities’ use of the police to break them up over the past week have roiled the nation’s campuses and raised profound questions about the balance between the values of free speech and maintaining an appropriate educational environment on campus for all students.

The easy answers are clearly wrong.

Allowing these protests to proceed without any regulation at all ignores the acts of violence, threats, and vile antisemitic rhetoric that have spewed from some of protests and raised legitimate safety concerns from Jewish and Israeli students. Shutting down any and all anti-Israel/pro-Palestinian protests on the grounds that they are threatening the safety of Jewish students, however, is an overreaction that fails to honor the concept that universities should be places where controversial subjects are vigorously debated and contested. Universities have the power to strike the right balance, but they have failed to establish and enforce clear policies, apply their rules consistently, and explain publicly the reasoning behind their various actions. If they don’t do better, it will continue to be a rocky month before students (mercifully) go home for summer break. 

Before discussing how universities ought to proceed, it is worth thinking about why grappling with the protests has been so challenging. There are a number of reasons.

First, there is an inherent tension between providing a campus environment consistent with free speech principles and protecting students from harassment. According to the Department of Education’s Office of Civil Rights, harassing conduct may take many forms, “including verbal acts and name‐calling; graphic and written statements … other conduct that may be physically threatening, harmful, or humiliating.”  However, the First Amendment protects what we commonly call “hate speech,” which is speech that voices prejudicial stereotypes and contains animus directed at certain groups. So, on the one hand, hate speech must be tolerated (indeed “speech codes” outlawing hate speech at public universities have frequently been struck down as unconstitutional), but on the other, many students feel that hate speech allowed anywhere on campus makes them feel unsafe.

The ubiquitous nature of social media compounds the difficulty. With students spending a tremendous amount of time on-line where they view rhetoric that they experience as hateful, they might easily conclude that many of their peers hold hostile or even violent sentiments towards them and become fearful to attend classes or leave their dormitories. If this occurs, the civil rights laws might categorize the situation as a “hostile environment” in which “the [harassing] conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.” The line between protected hate speech and illegal religious- or nationality-based harassment is so fuzzy it is no surprise that universities have been hesitant to try to draw it. Unfortunately, the law here is as clear as mud.

Second, even if universities decide to prohibit antisemitic speech on campus the definition of what constitutes antisemitism is hotly contested. Clearly, rhetoric like “Kill the Jews” is antisemitic and criticism of Israel’s policy about providing humanitarian aid in Gaza is not. But there is a lot of grey area in between. For example, the Anti-Defamation League takes the position that anti-Zionism is antisemitism. Similarly, the International Holocaust Remembrance Alliance asserts that “claiming that the existence of a State of Israel is a racist endeavor” also falls within the definition of antisemitism. Meanwhile, critics of Israel claim that including these concepts within the definition of antisemitism is designed to cut off legitimate debate on campus about the history of Zionism, Israel’s creation as a nation-state and Israel’s practices over the past 76 years. They claim that inquiry into these topics is clearly within the zone of academic freedom for professors and the free speech rights of students and university employees. I don’t blame universities for not wanting to take sides in this polemic debate.

A third difficulty is the way the First Amendment treats advocacy of violence. Many Jews, myself included, were outraged when some students and faculty voiced support for the October 7 attack on Israeli civilians as a legitimate act of opposition to Israel. Many have also been angered by the proliferation of flags and other symbols representing Hamas and the Popular Front for the Liberation of Palestine (both listed as foreign terrorist organizations by the United States) at the campus protests. Nonetheless, advocacy of violence is protected free speech unless it is intended to incite imminent lawlessness, which the protestors are not doing. So, we have a situation where protestors are clearly engaging in protected forms of speech advocating armed resistance against Israel, but Jewish students on campus are claiming that they are experiencing these references to violence on campus as threatening to their personal safety. Reconciling these competing claims is a difficult conundrum.

With these principles in mind, here is what I would do:

Strictly punish acts of violence and threats of violence: Universities were caught flat-footed in the early months after the October 7 attack and have suffered greatly for allowing reprehensible antisemitic conduct to take place on campus with impunity. Violence directed against Jews because they are Jewish or because they support Israel must be severely punished. Students should also be punished for targeting violent rhetoric like “kill the Jews” or “kill the Zionists” explicitly at Jewish students. These acts constitute illegal religious-based harassment.

Generalized rhetoric supporting violence or armed resistance against Israel or the concept of Zionism, however, must be tolerated as protected speech. Like it or not, blatant hate speech is protected by the First Amendment. Jewish advocacy groups, parents, and donors will not be satisfied with this distinction between prohibited harassment and protected speech, but universities have to stand up for this fundamental principle.  

Use time, place, and manner policies to protect Jewish students from harassment and ensure the smooth functioning of the university:  Universities should use time, place, and manner restrictions to regulate where on campus and what time of day protests are allowed to occur, or details such as the noise levels that protests generate. Universities can require that those organizing protests request permission in advance so that sufficient security is provided. Protests should be barred near residential areas. Protests should not be permitted to block main throughfares through campus. Noise levels may be regulated if the protests are interfering with classes. Universities may also bar permanent encampments such as those that have been erected around dozens of campuses over the past week. Universities may also prohibit protests during reading periods and exams on the grounds that they interfere with their educational mission. Time, place, and manner restrictions should also be placed on counter-protestors, including measures to separate protestors and counter-protestors to reduce the likelihood of violence breaking out between the hostile groups. 

That said, free speech principles require that universities designate spaces and times when protests may continue. Time, place, and manner restrictions may not be used to shut off all avenues of protest. And when universities impose these restrictions, they should be clear as to precisely why they are being implemented and how they relate to either the function of preventing illegal harassment or maintaining the regular functioning of the university. Transparency is critically important when regulating free speech.

Universities should enforce the protest regulation policies using tools like student suspensions but avoid using the police to break up protests. Columbia’s decision last week to call in the New York Police Department (NYPD) to break up an unauthorized protest and arrest over a hundred students was a big mistake. Other universities around the country are repeating this error. Modern student protestors want nothing more than to create viral moments where they can show they are standing up to authority and possibly document how they are being mistreated by the police on Tiktok. Universities should be patient and not afford students with these opportunities if at all possible.

Instead, I would institute a policy of rolling sanctions for students that refuse to depart unauthorized protests and encampments, with the number of semesters students are suspended growing the longer they remain out of compliance with clear university orders to vacate an unauthorized protest.  

Since universities are learning institutions for young people, I would also advocate for some form of restorative justice through which students could have their suspensions shortened or eliminated retroactively.  To gain some form of “amnesty,” students would need to accept responsibility for breaking the rules, promise not to do so in the future, provide service to the university, and complete an educational program about the rights and responsibilities of free speech.  Such a program should not be made available to those who repeatedly ignore orders to vacate an unauthorized protest, repeat offenders or those who have engaged in violent conduct. Barnard College appears to have instituted such a program for students suspended last week.   

Inviting law enforcement to come on campus to execute arrests of protestors should only take place as a last resort if violence has broken out that is beyond the capacity of the campus police to handle.   

Be patient and wait the students out:  If students resist ending unauthorized protests even after the maximum punishments have been meted out, universities should be patient and wait the protests out rather than using law enforcement to remove the protestors. Unless the protests are causing a major disruption to campus life, trying to ignore the protestors might be the most effective strategy.  At some point, enough will be enough and a law enforcement approach may become necessary, but I would give students a good long time to become bored and give up before going down this route.  Columbia appears to be belatedly using this approach with respect to the “Gaza Solidarity Encampment” that was immediately resurrected after the first one was disbanded by the NYPD.  The encampment is now in its ninth day. 

Do not punish students for using antisemitic rhetoric during sanctioned protests:  Much of the congressional hearings have focused on whether universities should punish students for using phrases associated with violence against Jews (such as “Globalize the intifada”) or that call for elimination of the state of Israel (such as “from the river to the sea, all of Palestine will be free.”). While I find this rhetoric to be offensive (as do many Jewish and Israeli students), these statements fall well within the bounds of First Amendment free speech and must be tolerated. Indeed, it is shameful that Columbia officials, including a law professor, did not point this out during the congressional hearing

I believe that if this rhetoric is used in sanctioned non-residential protest areas that Jewish and Israeli students can avoid if they want, then the claim that this rhetoric might make some students feel unsafe must give way to the important value of free expression. If Jewish students are directly targeted by protestors with this rhetoric, or the protestors chant these violent or quasi-violent expressions at Jewish centers or places of religious worship, then the calculus would change. The claim by Columbia’s president Shafik that protests where these phrases are being chanted “creates a harassing and intimidating environment for many of our students” is a gross overstatement that cannot be reconciled with freedom of speech.

I know my position on this issue will not sit well with many Jews, who are very disturbed by growing antisemitism in America and around the world and believe it must be vigorously confronted. But I don’t think we are doing college students any favors by shielding them from antisemitic statements uttered during campus protests. These sentiments are widespread in society. Indeed, they are being expressed in an even more virulent form just outside Columbia’s gates than they are on campus. How will censoring antisemitic speech on campus prepare our Jewish students for the antisemitic world they will be facing upon graduating (or that they regularly face when they walk to their off-campus apartments)? I would prefer not to pretend these sentiments don’t exist on campus and instead give our students opportunities to engage in difficult dialogues with those who chant “from the river to the sea” so they can explain why these ideas are so hurtful to them. It is also unpleasant but healthy for Jewish students to learn why individuals are so hostile not only to Israeli policy towards the Palestinians, but the entire Zionist enterprise. The idea that Zionism is a “settler colonial” ideology based on white supremacy has become widespread among far too many young people. We Jews need to learn how to attack and debunk that narrative. In my view, college is exactly where Jewish students should be starting to think about these issues and learning how to grapple with antisemitic, anti-Zionist, and anti-Israel ideas. The antisemitic protest rhetoric is providing a forcing function for this to occur. Censoring that rhetoric will only delay the time when young Jews get smacked by the reality of a deeply antisemitic world. We send our kids to college to get ready to enter the world as it is, not the world we wish it to be.

By all means, don’t cancel graduation: I find it hard to fathom that the University of Southern California was so flummoxed by a protestor encampment and the possibility that a student valedictory speaker might advocate in favor of the Palestinian cause that it cancelled its main, university-wide graduation ceremony. This is especially sad because this class of students lost their high school graduation ceremony due to COVID and spent much of their freshman year in isolated quasi-lockdowns. Universities work with both their campus police and local law enforcement officials to provide security for large scale, high-profile events and visitors all the time. They should be able to find a way to prevent the protestors from interfering with the graduation ceremonies. If some students want to chant and otherwise disrupt the ceremonies, that is something that will just have to be tolerated. It will be a lesson for the graduates and their parents about the nature of living in a free society.

* * *

If there is one bright spot in this current mess, it is the calendar. Classes are ending around the country. Exams will be taken and it will time for students to pack up and go home. Administrators can take a well-earned vacation after a very rough year.

They have a lot of work to do, however, to prepare for when the students return.  None of these issues are going away anytime soon.