By Bruce Kesler
ENCINITAS, California —Many of the finest and most honest minds – conservative and liberal — in and out of academia have argued, and sometimes succeeded, that campus speech codes often cross the line to suppression of First Amendment freedom of speech. The excesses in the wording of such codes, their arbitrary and often biased application, and the fear of usurping a constitutional right, together send chills up the spine.
Nonetheless, in court cases, private colleges have more leeway to enact speech codes than do public colleges, as they are not as subject to the First Amendment prohibition on government interfering with free speech. In the face of opposition to speech codes per se colleges, both public and private, have turned to anti-harassment policies. These seemingly turn the offense from the speech to the impact on those who are sensitive. In effect these policies make judging the offense even more subjective. Alongside, many campuses have instituted judgment procedures that deny those charged from confronting their accuser or, in some cases, even appearing to defend themselves. In many cases, those supporting such near star-chamber exercises in speech or behavioral prejudice are those judging for the kangaroo procedures. And, alongside these, liberal and leftist faculty have denied tenure or opposed research by those who have empirically challenged cherished thoughts or prejudices.
So, understandably so, any further enlargement of speech codes or definition of hate speech raises hackles among almost all those who have battled the present excesses. Further, most opponents have cause for little faith that in the prevailing leftist or hypocritical atmosphere on campuses that an enlargement to anti-Israel speech and actions that are anti-Semitic would be enforced or fairly.
The occasion for the current discussion is the report by members of the University of California Advisory Council on Campus Climate, Culture, and Inclusion task force on Jewish students. It recommends that a definition of anti-Semitism like that of the European Union be adopted to provide guidelines and current anti-harassment policies be enlarged to contain such guidelines.
Libertarian law professor Eugene Volokh, in opposition to the recommendation by the task force – from leaders of ADL and NAACP, still points out the elephant in the room. “[T]his is speech which does happen, which doesn’t generally lead to wide condemnation and counterprotests. The call for suppression by university, it seems to me, stems precisely from the fact that this speech isn’t suppressed by social pressure…” In other words, unlike speech and actions purportedly hostile to Blacks or Hispanics or gays, such equivalent or worse speech and actions against Jews or pro-Israeli students and faculty are not treated as seriously in the dominant left-leaning environment on campuses. Professor Volokh fears that such an enlarged anti-harassment policy, given the campus atmospherics, may lead to its use to further abuse free speech regarding other groups or causes.
These are, indeed, worthy arguments, paralleling many others. However, they still leave the elephant in the room, campus leadership ignoring or even encouraging vile anti-Israel speech and actions that are anti-Semitic, and failing to enforce college rules that already exist to prohibit faculty use of college websites to promote such vileness.
Free speech advocates correctly assert that more free speech by those opposed to the anti-Israel forces is the best medicine. Many individuals and groups have used their free speech to expose such excesses. But, the offense persists, and as the task force report makes clear has created fear among pro-Israeli students and faculty and denial of academic and social opportunities.
The task force report just calls for exploration of reasonable guidelines, to “clearly define hate speech in its guidelines, and seek opportunities to prohibit hate speech on campus. The President should request that General Counsel examine opportunities to develop policies that give campus administrators authority to prohibit such activities on campus. The Team recognizes that changes to UC hate speech policies may result in legal challenge, but offer that UC accept the challenge.” U of C President Mark Yudoff summarily rejected the challenge: “I believe our current policies may go as far as they can, given constitutional limitations.”
This brings us back to the root cause, the runaway leftist environment on many campuses. No one expects that to change in any foreseeable future. Pro-Israeli students and faculty, and such taxpayers and tuition-payers, are on their own. Let’s, at least, hope that more see this challenge for what it is and step up their support for individuals and organizations that speak out against anti-Semitism on campuses.
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Kesler is a freelance writer based in Encinitas. He may be contacted at bruce.kesler@sdjewishworld.com This article also appeared on the Maggie’s Farm website