California’s First Amendment Follies

The University of California-Berkeley campus. Photo: wiki commons.

Jewish advocates are often unfairly misrepresented as trying to suppress speech that is critical of Israel, especially on university campuses. Sadly, this trope has great resonance in many circles, because it echoes age-old stereotypes in which Jews are seen as all-powerful, conspiratorial and controlling. On California university campuses, where anti-Semitism and anti-Israel agitation remain epidemic, this misperception threatens to derail any real prospect for change.

The system-wide University of California campus climate advisory committee issued an excellent report in July. This came as a surprise to many observers. As UC President Mark Yudof handpicked the committee’s members, so many activists doubted that they would challenge the status quo. In fact, they did. The report is detailed, substantive, balanced and powerful. It describes both good and bad conditions for Jewish students. The bad is very bad: virulent anti-Israel hate on many campuses leading to hostility towards Jewish students.

The report contains several wise recommendations. Most importantly, it urges university officials to adopt a clear definition of anti-Semitism like the one that the U.S. State Department uses. Adopting a strong, clear definition would circumvent endless debates over the boundaries between anti-Israel criticism and anti-Semitism.

Unfortunately, the report also overreaches a little, urging university officials to ban all hate speech on campus. This would violate the First Amendment. If this brief provision had appeared in any other report, it would probably have been ignored in favor of the more persuasive recommendations. Because it is included in a report on campus anti-Semitism, however, the opposite occurred. Anti-Israel activists jumped all over it. The hate-speech recommendation, which was a non-starter from the outset, triggered such a firestorm of opposition,that all of the committee’s good and strong recommendations have been ignored.

The California Assembly, improbably enough, came to the rescue. On Aug. 28, the Assembly approved without debate an excellent resolution urging California public universities to combat campus anti-Semitism. House Resolution 35, authored by Assemblywoman Linda Halderman (R-Fresno), detailed a wide range of anti-Semitic and anti-Israel incidents at UC and admonished that, “the problem requires additional serious attention on both a campuswide and systemwide basis.”

Predictably enough, Palestinian advocates and some left-wing organizations attacked the resolution, arguing that it too would limit students’ right to free speech. In fairness, one could interpret a couple of sentences that way. But one could also interpret them otherwise. There is no reason why a university administrator, in deference to the legislature that pays his salary, could not enforce the resolution in ways that remain true to the Constitution. Nevertheless, UC appears to be folding under pressure. In an unusual repudiation of its own legislature—which provides a significant source of its funding—the university announced that it considers the resolution to violate free speech and academic freedom.

The University of California should fully comply with the spirit of the resolution but should do so within constitutional parameters. Universities can provide the full measure of “serious attention” to campus anti-Semitism—as the California Assembly requires—without restricting student speech at all. In August, the independent, non-partisan Louis D. Brandeis Center, which this author founded, issued a detailed blueprint for doing so. The Brandeis Center’s techniques include: issuing leadership statements to rebut anti-Semitic and anti-Israel propaganda; regulating non-speech forms of anti-Semitism, including assault, battery, and vandalism; regulating the time, place or manner of anti-Semitic hate speech; insuring effective security to prevent anti-Israel heckling at university lectures; and preventing anti-Jewish vandalism, such as the defacement of Israeli flags or Jewish institutional property on campus.

If administrators refuse to take action, it can only be for political reasons, since there is no constitutional or legal requirement that they do so. The California Assembly’s resolution is an important signal to the university. If the university rejects its legislature’s guidance, then the legislature must act more forcefully. When the legislature next addresses this issue, it should consider tying future funding to the university’s willingness to adopt firm, effective, and constitutionally appropriate responses to campus anti-Semitism.

Kenneth L. Marcus is Founder and President of the Louis D. Brandeis Center (www.brandeiscenter.com), which combats anti-Semitism in higher education. He is also author of the newly issued LDB Best Practices Guide to Combating Campus Anti-Semitism and Anti-Israelism.