When anti-Israel encampments emerged on American college campuses last spring, Jewish students and faculty were discriminated against, harassed, and assaulted. Some schools admirably addressed this behavior and the encampments that motivated it. But most did not.

Throughout that time, the Biden administration tended to condemn overtly anti-Semitic behavior, but took no substantive action against those universities that tolerated it. In his December essay, the legal analyst Tal Fortgang explores how the incoming administration can take a different path, using existing law to punish schools that continue to enable Jew-hatred. This essay was also the focus of a live discussion between Fortgang and the George Mason University law professor David E. Bernstein. In a discussion moderated by Mosaic’s editor Jonathan Silver, they analyzed how Jews can persuade the state and federal governments to defend their rights, and the role the new administration can play in fixing the campus anti-Semitism crisis. You can watch the discussion or read the transcript below.

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Jonathan Silver:

It’s well known that the American campus environment has been hostile to Jewish students, Jewish professors, and Jewish community members in ways that—even for us conservatives who’ve been ringing the bell about the intellectual and social disorders in higher education for decades—have been arresting.

Wanted posters of Jewish faculty members were hung at the University of Rochester last month. Back in the spring, Jewish students at UCLA were blocked from certain areas of the public state university grounds by protesters, and with the administration’s acquiescence. Last fall, we saw phrases such as “Glory to our martyrs,” referring to the psychopathic killers of Jews, projected in lights onto the library at George Washington University. That library, by the way, is the Estelle and Melvin Gelman Library, underwritten by Jewish philanthropic dollars for the benefit of all GW students.

Our task today is not to complain about all of this. These and many other examples are familiar to Mosaic’s readers. Our task instead is to ask the question of what the incoming administration ought to do about it. Now, it goes without saying that the federal government is not the only or even the first lever for addressing the problem of anti-Semitism, but one of the suggestions in Tal Fortgang’s terrific December essay is that Jewish citizens in America have been perhaps a little too queasy about the use of political power, and especially when we’re only asking that the law be applied equally and fairly to us without any special pleading. What’s needed, he suggests, is a change in our mindset and in articulation of political will.

Tal is a fellow at the Manhattan Institute and a longtime alumnus and friend of Tikvah. He is the author of that essay and is our guest today, as is the Antonin Scalia Law School George Mason University professor, David Bernstein, the author of the recent book Classified: The Untold Story of Racial Classification in America.

Tal and I are going to discuss his essay a bit first, and then I’ve invited Professor Bernstein to ask Tal some questions from his own angle of vision. Tal, let’s start with the beginning of your essay, which opens with a discussion of the discourse about whether anti-Zionism and anti-Semitism are related and how to distinguish the two and what this whole bewildering conversation is about. Why is that discourse a trap? What’s wrong with it?

Tal Fortgang:

Well, it’s a trap because we end up splitting semantic hairs rather than thinking precisely about what it is that the people who are tormenting Jews are all about, what their political program is about. We get caught up in these philosophical discussions about in what ways anti-Zionism in theory or in practice may or may not be anti-Semitic. But the fact of the matter is that anti-Zionism calls for the elimination of a sovereign state, putting many millions of Jews at dire risk of grievous harm, and that alone violates American civil-rights law, which does not merely protect Jews as Jews. It protects national-origin groups as well, and while Jews are a national-origin group, Israelis are a national-origin group.

And so to the extent that anti-Zionism calls for the elimination of the state of Israel, it is already a violation of the civil rights of Israeli Americans or Israelis who are studying on American college campuses. So if we wanted to do something about this problem, the first step would not be to try to understand why anti-Zionism is anti-Semitism—and it is, and I do discuss that at some length in this essay. It would be to start with the legal tool at hand, which is national-origin discrimination.

Jonathan Silver:

Don’t you think there’s also a sociological dimension to that whole discussion: that is, life is breathed into that discussion, it seems to me, very often by Jews who themselves are critical of Israel and would like to have some way of using their Jewish membership or Jewish identity as a way to criticize the state that they think is complicit in all sorts of evils in the world. The fact that there are some Jews willing to do that is then seized upon by a wider circle of Israel’s enemies. This whole discussion seems only to serve their purposes.

Tal Fortgang:

That’s certainly true, and one of the great obstacles to overcome in vindicating the civil rights of Jews and Israelis and Israeli Americans is to articulate a theory that does not depend 100 percent of Jews feeling unsafe or scared on account of anti-Israel demonstrations and anti-Israel fanaticism on campus. Overcoming the seeming problem of Jews, or pretend Jews, who leverage their identity into whitewashing what anti-Zionism can be done by stating a theory of what anti-Zionism is—a theory that does not depend on who is saying it, and it does not depend on how Jews are made to feel.

Otherwise, campus administrators and adjudicators within the various bodies that mediate these disputes and arguments can simply say, “Look, there are these Jews who don’t feel that way, so clearly this is some kind of political argument. It implicates your identity, but many political arguments implicate people’s identity and sense of self and even protected characteristics, but the behaviors we’re talking about are not inherently discriminatory. These kinds of wild anti-Israel demonstrations are not harassing, necessarily. Look at all these Jews who feel fine. Clearly the but-for cause of your discomfort is this political position called Zionism.”

Jonathan Silver:

This kind of sophistry, which allows for this aspect of our identity to be turned into a political preference, and therefore properly placed into the arena of civil disagreement. And in your essay you alert us to one of the failed strategies that the Jewish community has tried to deploy to address the problem of anti-Semitism, [i.e., trying to demonstrate that opposition to Israel is motivated by anti-Semitism]. There are a couple of other ones as well.

Tal Fortgang:

It is totally understandable that Jews, especially Jewish college students, have put their efforts into these arguments. And many of the people making these arguments have gained significant followings on social media, I might add, and Jews tend to glom onto these figures as leaders in the Jewish civil-rights movement—but I’ll put that aside for a moment. There are a few such strategies—I call them emergent strategies because they crop up organically based on the way certain college students and activists talk about Jewish civil rights. One of the key ways that these college students talk about what’s wrong with what’s going on at college is their feeling of being unsafe, which is exactly what you would expect a college student to say in the 21st century. That’s what we’ve been led to believe are the magic words that cause decision makers and the supposed adults in the room to take complaints seriously. I feel unsafe because there are people chanting, “Globalize the intifada” outside my dorm room.

Well, that may be true. You may actually be feeling unsafe, and for those of us who know well what intifada means, that may resonate. But for people who are not so well-versed in the Jewish experience or who don’t necessarily share pro-Israel or Zionist priors, it’s hard to make the jump from saying [a particular phrase] is subjectively offensive to [proving] harassment and intimidation or discrimination.

And moreover, [people say], “Look at these other Jews who don’t feel so discriminated against by this.” Those magic words, “I feel unsafe,” don’t go anywhere. They might help in a private lawsuit or in getting a university to commit to understanding better what anti-Semitism is, to push papers around. That might happen. But to achieve the big win of actually making campuses safe for Jews in the way that American civil-rights law requires, that is simply not a strategy that is going to prevail.

Jonathan Silver:

Well, it’s not likely to prevail for the reason that you just said, which is that here too there are a number of examples of Jews who are happy to say that they feel perfectly safe and in fact are joining the protesters and harassers. But there’s also something else you point out, which is that the whole language of safety has been so fundamentally degraded in our culture that the meaning of that term has been evacuated by its misuse and overuse over time.

Tal Fortgang:

That’s certainly true. When I was an undergrad, one of the main stories on campus was that a campus building was named after Woodrow Wilson, who was a horrible racist, no doubt, but Princeton had many buildings named after Woodrow Wilson, many institutions. Eventually the name was taken off. But when I was in college, the argument that was made very publicly was that it makes black and other minority students feel unsafe to go into a building named after Woodrow Wilson. At that point, you could tell that the word had either shifted meaning or lost all meaning, and it was being deployed as a kind of incantation to get the administration to act. The problem is that the administration knows exactly what’s going on when it gives into claims of students feeling unsafe. They know the students are not actually unsafe. Safety is a code word for, “We are going to use our status as a protected class to get you, the administration, to do what we want.”

It turns out that for Jews that’s not that effective, unsurprisingly so based on the way college administrations have been openly treating Jews. That is a perfect encapsulation of how we sink into thinking that the way to vindicate our civil rights is to present ourselves as victims who need protection. That is a kind of strategy that seems like it would help. As it turns out, trying to appeal to a particular subset of Americans’ feelings of sympathy towards Jews is just a losing argument, and that’s not really what civil-rights law requires. We can take a more hardheaded approach, saying, “What is happening on campuses is wrong, not because of how it makes us feel, and you need to fix it because it is your legal obligation, not because you feel bad for us.”

Jonathan Silver:

My own view, Tal, is that the mechanism by which the protected class of students that proclaims it feels unsafe due to the presence of Woodrow Wilson’s name on Princeton University buildings can appeal to the administration is shame. They can shame the university administration, and the reason why that shame works is that, privately, the administration agrees with the complaint. But in this case, my fear is that the administration privately does not agree that Jews are actually unsafe. After all, Jews, including those among the administrations at many of the most prestigious universities and colleges across the country, basically agree with the harassers of Jews and not the Jewish students. There’s a deeper sociological fact that, on this side of the American divide as it comes to Israel, it’s not going to be easy to appeal to the sympathies of the leadership class.

Tal Fortgang:

That’s certainly true, and on the substance of that point, I have nothing to add.

I will say that Jews thinking about what Jewish interests writ large are should be thinking about how to clamp down on these factories of anti-Zionism and anti-Semitism. This should be part of a broad sociopolitical project to advance our own interests. There’s no shame in that. There’s nothing to feel bad about in saying, “Look, the law is on our side and we as a group should be advocating for the enforcement of a law in a way that that improves things for us.” What do we have to lose by engaging with these universities?

And there are really two upshots of that. One is pushing beyond the settlement paradigm—I’m not referring to Israel and the West Bank. I’m referring to the Department of Education’s Office for Civil Rights, which frequently enters into settlements when faced with civil-rights complaints against universities. The overwhelming majority of these complaints are about anti-Semitism on campus, and I don’t know if any of you have taken a look at the content of these settlements, but to say that they are feckless is an understatement.

It reflects a kind of unwarranted faith that these campus administrations are actually going to address the underlying problem of campuses, which are rife with Jew haters in one form or another. They continue to select for such students and admit them because they want them, perhaps not for their Jew hating, but for the characteristics that go with that. And these settlements just require campus administrators to push paper around, conduct surveys. Classic bureaucratic sclerosis with no meaningful action. The way to transcend that is through private litigation, and to a much greater extent, as I’m sure we’re going to move to discuss, government litigation.

Jonathan Silver:

So now we’ve managed to clear away what we ought not do: indulge in these sophisticated arguments that have the effect of marginalizing the realities of Jew hatred on campus. We ought not think of ourselves, and supply the evidence which our adversaries need in order that they think of us, as weaklings who are trying to compete in the victimology Olympics, just like so many others in America have decided to pursue their own communities’ interests strategically. What should we do instead? What are Jewish civil rights and how can the government protect them?

Tal Fortgang:

Jewish civil rights are the requirement that Jews, and in this case Israelis and Israeli-Americans, be treated as equal members [of American campus communities]. That they not face hostile environments in institutions that receive federal funds.

Title VI of the Civil Rights Act, which is, as I’m sure everyone here knows, the main statute that helps turn civil-rights promises into civil-rights realities, requires that institutions receiving federal funding do not discriminate against Jews or Israelis or members of any number of other protected classes based on race, national origin, et cetera, and the United States has the power to cut off federal funding to institutions that are deemed to be discriminatory, and as various precedents have shown, that’s an extremely capacious category.

There are schools that were deemed not to be noncompliance with their Title VI obligations because they asked parents to present social-security cards when enrolling their children. This is for primary schools. The Department of Education investigated and said this could have a potential chilling effect on immigrant families who don’t have social-security cards. It eventually entered into an agreement after finding that such a policy violated Title VI. So if you think broadly from that kind of principle, well, could what’s going on on campus have a chilling effect on Israeli American high-school seniors applying to Columbia? There simply needs to be, as a matter of politics, the will to give investigations some teeth.

The Department of Education could say, “You, Columbia, need to take serious, serious steps to address your national-origin discrimination problem. Perhaps reassess your admission standards. Perhaps expel the students who are responsible for engaging in this, rather than just taking institutional steps to collect more information, or we will cut off your federal funding in six months.” The government needs to say, “Get your act together right now, or we will simply turn off the federal spigot.” That’s billions of dollars. It’s not all the money that Ivy League institutions have, but they certainly care about keeping those federal funds flowing. That is the way to signal that the government is serious.

I will say that we as Jews have a two-part role to play in encouraging this reality. One is: if and when these efforts do get off the ground, there will be a sort of intuitive response among many Jews, a real visceral response of, “We’re not so comfortable with this. We don’t like punishing these kids because of some stupid things that they said. They probably don’t even know any better”—reflecting a general Jewish-American reluctance to wield political power or to exercise political influence in unabashed ways. I think that is simply a mistake. This is well within our law and the best of our American traditions of treating each other equally regardless of race, color, or creed. This is a realization of civil-rights promises and we should not be ashamed that such actions are being taken either by us or on our behalf.

The second thing is to help lay the groundwork for these eventual lawsuits, should they come, to be effective by changing the cultural narrative or the social narrative around the way that we talk about what’s going on on campus. And that means abandoning those unhealthy ways of talking about our problems like we discussed, and embracing one that is clear-eyed about what anti-Zionism is the call for: the elimination of a sovereign state. It just so happens to be the Jewish state, but even if it weren’t, it’s still national-origin discrimination, and it’s not “criticism.” It’s not any of those other things. It is reckless disregard for the lives of 7 million Jews and a call for the destruction of an entire national-origin category in which “Israeli” as a category would cease to be, where there is no Israel. We need to home in on that precise civil-rights violation at the heart of anti-Zionism: that it singles out one national-origin group for inferior treatment.

Jonathan Silver:

Professor Bernstein, I’d like to bring you in and see how you reacted to Tal’s essay and to the conversation we’ve had for the last few minutes.

David Bernstein:

First, let me say that I’ve met Tal, but more importantly I’ve read many of his writings, probably because I’m on his email list. He’s a brilliant writer, a brilliant essayist, and everyone who’s watching this should be trying to follow him on social media or reading. When you see his byline somewhere, make sure you read it. I agree very strongly with some of the points that Tal is making. In particular, I think, I wish I had saved this essay somewhere, but I saw an essay recently, I think it might’ve even been in Mosaic, where someone was talking about campus anti-Semitism, and the essay said that the leaders of Jewish communal organizations, the traditional “big machers” in the community that we all know, are upset with the student activists and activist groups that have sprung up since October 7 because they think they’re too confrontational.

They prefer to talk quietly to the administration of Harvard (or wherever), and have a little bit of extra training about anti-Semitism. That is a ridiculous and completely inadequate response to what’s going on, and it’s particularly ridiculous and inadequate because it presumes that the administrations at these universities are neutral ideological actors. That they just want a comfortable environment for everybody, and if we just explain to them why Jews are feeling uncomfortable, they will react. And in fact, we see over and over that this isn’t the case. Some bureaucrats are just motivated standard bureaucratic imperatives, but people go into university administrations often because they want that sort of leftist, woke environment, which doesn’t really take Jewish concerns seriously. It’s so obvious in so many ways that they don’t that the idea that you could just keep the status quo as it is, but quietly talk to administrators and that will solve the problem is completely absurd and a reflection of the fact that a lot of these Jewish organizations are dinosaurs.

And in fact, someone just did a survey recently of Jewish activists on campus and asked, “Which groups have been helpful to you?” You don’t see the ADL, the Simon Wiesenthal Center, mentioned at all by anybody. They’re just completely absent from the students’ minds because this behind-the-scenes stuff isn’t really helping. So I totally agree with Tal that we need to be more upfront and confrontational. I also agree that the new administration provides a lot of opportunities to rethink how things have been going. The problem with private lawsuits is twofold. First, they’re expensive. You have to find lawyers willing to bring them and they’re uncertain in their outcomes, so there have been some and they’ve been generally settled, but ultimately you can only sue a limited number of universities where you have the best case. You’re going to want to find private lawyers to do it.

It’s also really hard to find plaintiffs. People don’t want to be out there. They don’t want their names on these things. They don’t want to be harassed even further by their classmates, and so forth. There are some ways around that, but you really need the Justice Department to be involved. And this brings me to a third point that I don’t want to lose from Tal’s essay, which is the fact that we always focus on Jewish students, but many of these schools have Israeli students, or they could potentially have Israeli students, and that is a separate form of discrimination that’s often easier to prove.

Tal gives some examples in his essay when a professor singles out an Israeli student for obloquy or says, “Okay, you’re Israeli, you justify what the ‘genocide’ going on in Gaza.” That’s clear. It doesn’t matter if it may not be anti-Semitic discrimination or anti-Jewish discrimination. It’s clearly national-origin discrimination. Professors like that really should be disciplined, if not fired, and really nothing’s been happening to them. There may be a desultory apology from the university, at best.

But here, Tal, as much as I admire your writing, I’m going to start to be a little bit critical. As far as claiming a hostile environment, I’m not against it. Going back to a book I wrote twenty years ago called You Can’t Say That!, I have had qualms about hostile-environment law personally and the extent to which it might infringe on free-speech rights. But even if I didn’t have those qualms, lot of judges have those qualms, and that makes it a lot more difficult.

I think one could argue, for example, that saying, “Globalize the intifada” could be analogized to, say, burning a cross. Saying, “Globalize the intifada” in front of a Hillel building you could say is sort of the equivalent of cross burning, which the Supreme Court says isn’t protected, because its intent is to intimidate. But I don’t think most anti-Israel speech, even viscerally hardcore pro-Hamas speech, reaches that level. When Tal says that you’re calling for the elimination of the Israeli state, well, I might very well call for the elimination of the North Korean state or the Iranian state as it currently exists. I don’t want an Islamic Republic. Is that national-origin discrimination, a hostile environment for Iranians, if I’m a professor and I say that? I think that’s been a hard case to make.

So I’ve said all of that, but I want to bring Tal back in. Tal, I think you have these difficulties, so why not go for what I think are lower-hanging fruit? You have federal laws that are much easier to employ. You don’t have to go to speech and hostile environments at all. Just say, “Federal, state, and local law forbid vandalism. You can’t disrupt classes. It’s against university rules and it’s intimidating. You can’t go into the library and take over the library, and if universities allow you to do that, they’re violating the civil-rights laws. You can’t engage in intimidation. You can’t engage in threats.” All these things are happening, and the Biden administration Justice Department publicly said to reporters, “These things are speech related, so we’re not going to prosecute them.”

But of course a lot of crimes—every hate crime is speech related—has an ideological purpose. So the idea that you’re not going to prosecute hate crimes because it’s speech related is ridiculous. There’s so much low-hanging fruit under Title VI. Tal’s read my article. There’s the FACE Act that prohibits demonstrating in front of synagogues: Hillel buildings are Jewish houses of worship often. There’s the Ku Klux Klan Act, which should have been applied to the people at UCLA, which prohibits conspiracies to violate civil-rights laws. Why didn’t you talk about what I think are low-hanging fruit, as opposed to, I think, the more aggressive and harder-to-show hostile-environment rules?

Tal Fortgang:

Fair enough. I did write a piece for City Journal earlier this year called “Intimidation Is Not Free Speech,” where I discuss the totally legitimate causes for universities to expel students who are engaged in activities that are expressive in nature, but are clearly actions that are not protected by the First Amendment or our traditional ideas of broad free-speech rights. And I think that a national strategy to hold campus rules against the campuses themselves would be a perfectly welcome lever for enforcing these civil rights and possibly getting rid of many of the worst offenders. I do think there’s still going to be a good deal of negotiation with universities involved in such things, but the federal government can make demands that those rules are enforced equally, and I think that would get some of the way there.

I also think you would still be left with some activity that is expressive, discriminatory, and not so clearly “action” as to be covered by the strategy that you’re describing. While vandalism is not protected by traditional free-speech principles mere shouting might be considered to be protected, yet there is still a category of discriminatory harassment that has not been protected by the First Amendment, that is still conduct that institutions and the government can punish. Moreover, this is not the government coming and punishing students for their speech. It is holding universities accountable if they want to continue receiving federal funds. It’s holding them accountable for countenancing these expressions that we both know are not actually political speech: they are attempts to intimidate Jews and other Americans, to intimidate decent people from engaging pro-Israel advocacy and make it seem like a fringe position.

And that’s why I think targeting this kind of abhorrent expression is warranted because it is a very clever ruse to say this is mere speech. Yes, in a certain sense it is mere speech, but it is not a good-faith political argument. It is intimidation and harassment cleverly disguised, and I think that getting to that point is going to be important for rooting out a problem that I think we recognize exists, which is the fake political conversation.

Jonathan Silver:

David, I want you to respond, but Tal, I’d also like to press you to respond to the larger issue that David raised in his question, which has to do with the way that you think of how civil liberties relate to the rights that you’re trying to protect here. Are you concerned about that?

Tal Fortgang:

I am. I’m concerned in the abstract sense that I would like to maintain a healthy balance between traditional free-speech rights and Jews’ civil rights—and everyone’s civil rights—and the truth is that to some extent the Civil Rights Act itself creates problems with freedom of speech and freedom of association. To the extent that Professor Bernstein has qualms about the use of hostile-environment laws and all of those expansions of the civil-rights domain, I share those concerns, but that is the law that we have. I think that if we’re going to take on the problem of the collision between Civil Rights Act requirements and the First Amendment and free-speech principles broadly, that’s a much, much deeper question about our civil-rights laws, not about this particular application of them.

David Bernstein:

I think we both agree quite strongly that universities have to treat Jewish students equally. My position is that whatever our view of the relationship among civil rights, academic freedom, and freedom of speech is—whatever rules apply if black students complain, if Hispanic students complain, if Arab students complain, if women complain about speech—whatever those rules are, they need to be applied to Jews, and I have no qualms about that. I go back and forth about this with some of my friends, like the other David Bernstein from the Jewish Institute of Liberal Values. (We’re co-authoring a paper, which is kind of funny.)

I argue, “You must apply the rules equally, even if that means you’re suppressing speech.” In fact, I think this would be beneficial to freedom of speech overall, because I think that the reason that we have a lack of freedom of expression on campuses is precisely because campus administrators can apply things unequally. They want to give preferential treatment to certain groups and certain ideas. If they were forced to apply the rules equally, they would apply them more loosely. I still think it’s dangerous to go beyond that and say, “But it’s a good thing to begin with.” First of all, I think that having a liberal environment, including allowing for outrageous speech, is ultimately good for Jews. Jews thrive under liberalism. We’ve been able to compete under liberalism.

But because the other side has to a large extent captured university bureaucracies, they can play this game too. Let me read to you something from a statement by a group of Arab Canadian lawyers. They want Canadian universities to adopt a standard for anti-Palestinian racism, which they define as “a form of anti-Arab racism that silences, excludes, erases, stereotypes, defames, or dehumanizes Palestinians or their narratives. Anti-Palestinian racism takes various forms including denying the Nakba and justifying violence against Palestinians [or] failing to acknowledge Palestinians as an indigenous people with a collective identity.” It goes on beyond that, but you get the idea.

You can imagine—maybe not under the Trump administration, maybe not right now—that if we institutionalize this too far, national-origin discrimination includes stuff that we really, really find offensive and against our identity, that ultimately will be used to ban Hillel because it’s Zionist, or to say that anyone who’s pro-Israel is denying Palestinian identity and narratives. If you if you contextualize the [Palestinian] refugee problem within its actual historical context, you might be accused of being the equivalent of a Holocaust denier. So I am concerned that two could play this game, and we’re on the losing side in terms of who has the administrative muscle.

Tal Fortgang:

I understand and share that concern. There are certain asymmetries between Israel and the Palestinians and what Zionism looks like and what anti-Zionism looks like that I think might make me a little bit less concerned, though. For one, , the heart of anti-Zionism is the elimination of a sovereign state, whereas Zionists, the vast majority of Zionists—to the extent that that term even means anything today—couldn’t support the elimination of a Palestinian state because one doesn’t exist and they do not support a movement to deny Palestinians a state.

The overwhelming majority of Zionists, and certainly the ones who participate in these discourses on college campuses, are open to the possibility of a Palestinian state under the right conditions. They don’t deny that Palestinians exist or have a right to sovereignty.

The Nakba example is a tricky one, and it definitely pushes the idea to its limits. There are historically contested accounts of what happened in 1948 and 1949, and the way we might contextualize or analyze those is certainly contestable. So your point is very well taken, and we should certainly think about to what extent are we actually encouraging that, and to what extent was that inevitable. To what extent does Title VI of the Civil Rights Act make each national-origin group, or any political movement trying to fashion itself, as a protected class? Does it make that an inevitability? I’m not sure the strategy that I’ve laid out here necessarily hastens that outcome. Clearly, it’s happening on its own, as you read. I think that is a collision course between American civil-rights law and the way that identity operates culturally that I think is more or less inevitable.

David Bernstein:

One thing I’ve really come to feel strongly about, which would be probably even more radical than what you are proposing in terms of the status quo, but I think is maybe easier legally—because it seems to me almost unquestionably the obligation of universities—is that you have a lot of professors who have expressed fealty to BDS, by which I mean they’ve not only said in the abstract that, “I support BDS,” but that, “I believe in BDS personally. I will boycott Israel-related institutions and individuals.” My position is that if you really want to get to the nub of how Jewish students are being affected by things that are not violence, things that are not otherwise illegal—like violence, intimidation, and so forth—you have to pay attention to the fact that there admissions officers, faculty hiring committees, deans who give out grants and decide how much research money you get, whether you get promoted, and administrators who are essentially not acting as faculty expressing their opinions on the issues of the world, but are acting on behalf of the university.

Once you are hiring, once you are admitting students, once you are signing agreements with other universities, you’re acting on behalf of the university. Every university in the country bans discrimination against Israel, against Israelis, against people who have pro-Israel ideas. BDS specifically bans contact with Israeli universities, and if you read the international statement [in favor of academic boycotts], it also suggests that professors or others who believe in BDS should boycott people who support violations of international law, which in their mind means anything Israel does. By that logic, basically 98 percent of Jews are out of the picture to the extent they actually enforce this.

I think one thing the Department of Education could do is to say that universities, before they allow anyone on a committee involved in hiring, before they hire anyone to work for the admissions office, before they give anyone a post as dean, must ask those people to say, “I will not violate university rules and civil-rights laws. Whatever my personal views, I will treat anything related to Israel fairly.” This can have one of two good consequences. Either those people will resign from such positions or won’t get them, or they’ll have to admit that they’re complete hypocrites, and while they will sign BDS declarations, in practice they’d rather have their promotion to dean than actually boycott Israel.

Tal Fortgang:

That makes sense to me. I think it raises a broader and important point that’s lurking in the background of my essay, which is, yes, this is a strategy for vindicating Jewish civil rights, and I think that’s any important and serious goal. But I think there’s a broader problem of the corruption of universities from administrators to the professors, to the students themselves that often manifests as national-origin discrimination or discrimination against Jews. But really that is a symptom of a much deeper corruption that pertains from what the university is doing and is supposed to do, one that vitiates the justification for federal support for these universities more broadly.

And to some extent the policies we’re discussing can serve as a lever that can pry open what universities and show that, essentially, they don’t deserve federal funding. This is a way to start making that happen. There have been a lot of threats about pulling federal funding and states not supporting universities that have gone off the path of the righteous. This is a way to get at universities, to hit them where it hurts and to do so in a way that is legally sound, and politically I think pretty palatable.

David Bernstein:

All right. I’m Linda McMahon and I am the incoming secretary of education and I’m concerned about anti-Semitism on campus and I want to tell my people at the Civil Rights Office to write a long memo. “Look at what Fortgang’s writing,” I tell them. “Look at what Bernstein’s writing.” But I also want action items. I’m putting you on the spot here. What are the top three things that the Office of Civil Rights should announce on January 20th, or whenever the new secretary of education gets confirmed?

Tal Fortgang:

Let’s see if I can come up with three. We certainly want a guidance that says that we treat national-origin discrimination in the form of anti-Zionist eliminationism as a form of discriminatory harassment, and that we will proceed with investigations and eventual lawsuits.

And perhaps another guidance—which is just a form of regulation for those who are unfamiliar with the labyrinth of the regulatory state—saying what we consider an adequate remedy to findings of discriminatory harassment in the form of anti-Zionism or anything else. Those remedies would have to include actual consequences for the individuals involved, not just the groups. For instance: it wouldn’t be enough to kick Students for Justice in Palestine (SJP) off campus so that its members can reconvene under another name. We’re actually going to raise the stakes and the costs of engaging in this kind of discrimination. We want expulsions, and frankly, we want third-party supervised revisions to admissions procedures to make sure that this doesn’t happen again.

Number three, our policy is going to be that unless you settle on those terms, we’re going to take this to court. We’re going to sue. We’re not suing only as a last resort anymore. We are actually going to wield that as a threat that can get universities to shape up.

David Bernstein:

That’s a point that I haven’t seen raised very often, if at all, which you’ve made several times, about admissions officers. I think it would be fascinating if there were a Justice Department investigation into some of the schools that have had the worst problems—Northwestern, NYU, Columbia, University of Pennsylvania—to find out whether admissions officers have been favoring students who have anti-Zionist backgrounds, which could be determined from emails and other documents. Perhaps they look for it as part of an overall portfolio of far-left views or just because they like the anti-Zionism itself. I think would be worth looking into, because there certainly are differences in different schools and it’d be very interesting to know more. Part of it I think depends on how many foreign students are at a given school and how many graduate students, but at some, the undergraduates are a lot more active in anti-Israel agitation. You really do wonder whether they’re getting favorable treatment in the admissions process.

Tal Fortgang:

Just to take that a little further, it’s worth recognizing what might be laying beneath the surface here. I went to NYU Law School, and every single year from the two years before I matriculated to today, NYU law school has precisely calibrated the median LSAT of its incoming class. It’s been exactly the same every year. Also the median undergraduate GPA has varied very little. The Federalist Society always gets exactly five students, which, as Professor Bernstein will note, is a comically small number, but that’s NYU for you. Every element of each incoming class is perfectly tailored to be what NYU wants it to be. And every year some 40 percent of students are anti-Israel fanatics. Is that a coincidence? I don’t think so. Is it because they’re selecting for anti-Israel fanaticism? Probably not. But there are things that they are selecting for that very strongly correlate with anti-Israel fanaticism, and that’s the kind of thing that we want to investigate.

Jonathan Silver:

Professor Bernstein, Tal, let me just bring some of the many questions that we’ve got from the audience here. First, just as a point of clarification, are American Jews and Israelis members of the same national origin group under the applicable civil-rights law?

David Bernstein:

The quick answer to that is no. Israelis are national origin. When the Civil Rights Act was passed in 1964, it excluded religion because Congress wanted to protect religious colleges—Catholic universities, Yeshiva University, whatever—from having to admit everybody regardless of their faith. But about 20 years ago, Ken Marcus at the Education Department promoted the idea that discrimination against Jews as a religious group is not prohibited, but discrimination against Jews as an ethnic group is. I have to say, it’s really unclear whether this is national-origin or racial discrimination or some mishmash of the two. But this has been accepted by every administration since 2003, Republican or Democrat. The Obama administration was a little late, but they eventually accepted it, too. So basically Jews are protected as an ethnic minority. How it’s justified by the law is, unclear, but it’s not really national origin as such.

Jonathan Silver:

Is there a role for immigration policy in our thinking about this? For example, preventing offending schools from issuing form I-20s to foreign students applying for visas?

Tal Fortgang:

That’s a really interesting question. I’m far from an expert in immigration law. There’s clearly a problem on college campuses of foreign nationals—frankly, particularly from Arab and Muslim countries, although from countries around the world as well—coming in and bringing certain attitudes about Jews in Israel with them. I would say that that indicates that immigration law may have a role to play. I’m not sure that it does on the front end. It might be more relevant on the enforcement of immigration law. Professor Bernstein can obviously speak in a much more educated manner to the conditions for which deportation is appropriate or the revocation of visas, but it’s an interesting avenue to pursue.

David Bernstein:

Immigration law prohibits students who are here on visas from supporting designated terrorist groups, which would include Hamas and Hizballah. And people say, “Well, what about the First Amendment?” And the legal answer, at least right now, is that this is not considered punishment. You’re not putting anyone in jail for speech. You’re not fining them. You’re just saying, “Look, we have some people we don’t want in this country. We have sanctions against all these terrorist groups. That’s legal. Why would we want people who then support them to come into this country?” So you could certainly deny them visas. You could deny renewal of their visas. You could even expel them, as Trump has promised to do. I do think part of the problem is that universities like Columbia or Harvard now think of themselves as global institutions rather than as American institutions.

As American institutions, they would want to be in the American mainstream, which is that we don’t tolerate anti-Semitism and we’re kind of fond of Israel, even if we’re sometimes critical of it. As global institutions, they’re naturally inclined to adopt the global perspective on this, which is that we don’t really care about anti-Semitism. In fact, sometimes it may serve useful political purposes and we certainly are not friendly to Israel. I can’t say that it’ll be a winning argument to say that because of that we should limit foreign students. But I think that is a factor worth looking at. The United States government subsidizes these universities to a very significant extent. Should there be some limits on how many foreign students are admitted to these universities? They take up 20 percent of the graduate classes at Harvard, for example, limiting the opportunities of Americans while getting funding from the U.S. taxpayer.

If we’re funding Columbia, Harvard, Northwestern, et cetera, I prefer to keep them as American institutions. I don’t need my tax money going to a global institution that thinks its job is to educate Africans and Asians and people from the Middle East or Europeans. I want these institutions to be primarily here for the United States.

One good thing about having international students, is that American values will reflect onto them and for them to bring those values home. And the problem is if the university intellectual climate is dominated by people from third-world authoritarian countries, they are instead bringing their values to the university and taking over the university intellectually. And I don’t see why that’s good for America.

Jonathan Silver:

Tal, in his question to you, Professor Bernstein made reference to Jack Wertheimer’s November essay in Mosaic in which a number of officials from prestigious legacy Jewish organizations expressed their frustration with the activists. This question is related to that.

The viewer writes this: “In my experience at UC Irvine, although a few brave students and faculty members may have the fortitude to speak out, it’s the professionals at the mainstream, local organizations like Hillel and Federation that do all they can to urge silence and to encourage work behind the scenes. These organizations have the power to silence those who are willing to speak out. Now, the question: how do we change the mindset of these organizations, which are viewed by university administrators as representing the community?

Tal, one of the main imperatives that you put before your readers is that what’s necessary here is not a change in law, but a change in will. What are the tools of persuasion that you think you need to get Jews to advocate for their own interests?

Tal Fortgang:

That’s a terrific question, particularly as applied to communal leaders who obviously have a vested interest in maintaining their good connections, maintaining their influence where they have it. That’s a real challenge, because there is an incentive problem there. I do think that popular support for a little bit more fearless advocacy actually privileges the whole of the community, and the needs of Jews as a group over institutional relationships, which generally attach to an individual or a few individuals, can probably help move the needle. I don’t want to single out Hillel, but I have heard some complaints and concerns about Hillel leaders doing exactly what’s described in this question, and they are understandable. Still I think it can be unfair to single out Hillel as an organization. It has a lot of constituents and donors, and a leadership that cares very deeply about the future of the Jewish people.

We may be stuck in some fixed paradigms about what is good for the Jews, about maintaining our good relationships and crossing ideological boundaries. We don’t want to look too partisan in one way or another. We don’t want to exercise our will too freely. I think a groundswell among the actual supporters and patrons of Hillel can hopefully help move the needle there. I know that’s not a very satisfactory answer because it’s abstract. It really is. But it will take persuasion, starting from the participants in this webinar speaking to people in their spheres of influence and so on and so on, until there is an actual attitude shift that says, “You know what? This is scary, and this is not how we have conducted ourselves as a community for a long time, but we need a mindset shift that says,” I’ll put it bluntly, “We’re going to defeat our enemies. We’re not going to try to work to an uneasy draw by whispering in the ears of people who simply will not go out on a limb for us.” We want people to advocate for us, and for our right as Americans.

Jonathan Silver:

This is so important. I’m not accusing any particular institution, or any particular Jewish leader of acting this way, but so often I’m reminded of the image of the Jew who is beseeching the vizier or coming on bended knee to the king to plead his case or the case of the Jewish community. Because we are democratic citizens, citizens in America, we have the responsibility to assert our rights in a way no different than any other American citizen, and that is what Tal is asking us to do, and that requires that Jews no longer think of themselves through the lens of that kind of hierarchical politics. Engaging only in such behind-the-scenes conferring once was the right strategy for protecting Jewish communal interests. By asking us to act as equal and free democratic citizens, Tal is asking us to change the way that we think about our community.

David Bernstein:

This is a really important thing, if I could step in here. I’ve been blogging about Israel and so forth for over twenty years, so I’ve been involved in some of the controversies as a commentator, and students contact me and sometimes tell me, “We want to say something, or do something, about our Jewish professor being harassed,” or whatever it is, “but the Hillel rabbi is telling us we can’t,” or something similar. I want to say, first of all, that Hillels vary dramatically in this regard. Some are much more willing to be confrontational. You shouldn’t paint with a broad brush. I should also say Jewish-studies departments are almost entirely useless and usually worse than useless. They’re usually on the wrong side because they’ve been infected by the “woke mind virus,” as Elon Musk calls it.

If you’re giving money to your local Jewish studies program thinking you’re helping the Jewish community on campus, please don’t, at least not without a lot of investigation, and never endow it, because even if the professor who’s there now is good, you don’t know who’s going to replace them. But Hillel is in a difficult position. They in some sense need good relations with the university because they’re asking for favors. Please don’t schedule orientation on Rosh Hashanah, etc. You can imagine the things that they need. And they also have, frankly, an institutional interest in not playing up anti-Semitism on their own campus, because if Jewish students then decide not to go, they’re out of business, so they want to paint a nice picture.

Those things are inevitable, but there are also worse things that happen. There are some [Hillel rabbis and officials] who just ideologically think our job is to get along with the other minority student organizations. If other groups are being really anti-Israel, we can’t say anything because, God forbid, the Black Student Union or the Muslim Students Association will be angry at us. That’s completely absurd and I have no use for leaders like that. And there’s also a middle group of people who just believe in the Jewish community’s traditional communal-relations strategy. The Jewish Council of Public Affairs (JCPA), which runs the local Jewish community councils, is like this. They would say, “Our strategy is one hand washes the other. We support the LGBT groups and the other minority groups and the women and so forth, and then they’ll support us.” This strategy has obviously been a complete failure. Maybe it wasn’t a failure twenty years ago. It’s now a complete failure. It needs to be completely undone.

But the answer to this is I think you do need organizations and individuals acting outside the Hillel infrastructure, and in a sense, you could play good-cop, bad-cop this way. Hillel people could tell the university, “We really want to work with you, but these radical students are very upset. You have to do something.” I think that’s probably the best way. If you have activist students who are upset with what the Hillel is doing, just tell them to find a way of acting outside the Hillel establishment. Not every group that has Jewish or Zionist concerns has to be under the Hillel umbrella.

Jonathan Silver:

The last question is a very poignant question. The author of the question requests to remain anonymous, and you’ll understand why. “How do lawyers and civil-rights advocates in the U.S. get involved in the legal fight for Jewish and Israeli civil rights directly? I ask as an October 8th Jewish humanitarian- and refugee-law professional, a JD who, like many of my Jewish colleagues, has been chased out by civil-rights and humanitarian-law employers on account of being Jewish.

Tal Fortgang:

There are a couple of extremely practical answers to that. One that leaps to mind for me is the Brandeis Center led by Ken Marcus, whom David Bernstein mentioned a moment ago, and Alyza Lewin and some of the other people I cite in my essay. They are doing heroic work and they need all the help they can get, not because they’re not competent, they are omnicompetent, but because they have more complaints than their staff can handle, so they’re constantly looking for help from legal professionals.

Going out on a limb, the incoming administration is going to need lawyers who actually know how to litigate and who have an eye on the ball when it comes to overarching policy goals, and many of us will may need to hold our noses if we’re going to go to work in an administration like the one just elected, but that may be worth it to pursue certain narrow goals that will pay dividends in the long run.

I think at a more abstract level, there are certainly parts of my argument that need further explication in legally cognizable terms and perhaps in legal scholarship. We need legal scholarship that helps explain why existing civil-rights law easily comprehends the kinds of behaviors that we’re seeing on campus today, which courts can cite and that can help affect a sea-change in the way that legal thinkers approach this particular problem. I’m sure Professor Bernstein has other suggestions.

David Bernstein: I don’t actually know how effective this has been, but I know even the folks at Brandeis Center and recommend that students contact them as well. There is a campus anti-Semitism legal helpline that the ADL sponsors, I think, along with a bunch of other Jewish organizations, and I don’t know much about it. I know it exists. I know people recommend it, and I know they rely on volunteer lawyers, so you could volunteer for that. There are lawsuits going on around the country involving campus anti-Semitism, and the lawyers are often somewhat understaffed, which is reason there aren’t more lawsuits. You could volunteer to help them.

What we don’t need is another organization. There are already too many organizations bringing these lawsuits, and they don’t really coordinate, which drives me nuts. So go find one of the existing people or organizations that’s bringing a lawsuit and volunteer.

The other thing that anyone could do, and you don’t have to be a lawyer, involves Title VI of the Civil Rights Act, which Tal has mentioned. Anyone can file a Title VI complaint. If you know of anti-Semitism that you think violates the law, you should do it, especially if you know the law a little bit or have a lawyer-friend you could ask. You can send me an email if you want, or Tal, probably. Also, you could go to the Civil Rights Civil Rights Office at the Education Department. There’s a very easy online form to fill out. They are required by law to investigate it, and if it has any substance, it will result in an investigation and it may actually result in some action. If the university is already under some sort of complaint under the Biden administration, they would consolidate it with others. I’m not really sure how they could legally do that. It seems if you have five different complaints for five different incidents, it needs to be five separate investigations.

But regardless, the Trump administration might change that policy. But everyone on this call should know that if you, say, have a son or daughter who’s in college who had a bad experience of anti-Semitism and who says to you, “Please, mom and dad, I’d love to do something about it, but I have finals, I have work, I have my friends. I can’t be the one to complain,” you could be the one to complain. If you don’t want your name on it, have a friend put his name on it. Anyone can complain. You don’t have to have any ties to the university. You don’t have to have any ties to the people in question. All you need is to know something about the incident and report it to the Department of Education.