Editor’s Note: Mark Goldfeder is a former law professor and director of the National Jewish Advocacy Center.The views expressed here are his own. View more opinion articles on CNN.
I would have hoped that, following the mass atrocities Hamas visited on more than 1,400 Israelis, US students who support Palestinian aspirations would want to separate themselves as quickly as possible from the scenes of depravity committed in the name of an explicitly antisemitic genocidal agenda.
Shockingly, however, several “pro-Palestinian” organizations on America’s most elite campuses showed no empathy for what happened to Israelis and instead blamed the victims for the unspeakable horror they suffered. (“Pro-Palestinian” is in quotations because you can, of course, be pro-Palestinian without supporting genocidal terrorism.) A coalition of student groups at Harvard University, for instance, put out a statement that they “hold the Israeli regime entirely responsible for all unfolding violence.” Some of those groups and students did eventually walk their statements back, but while Harvard’s was particularly egregious, it was not the only such incident.
Thankfully, some heroic citizens in the corporate world have issued a response. Students may have the right to openly support murder, but hedge fund CEO Bill Ackman explained that he and his fellow business leaders have a legitimate interest in knowing their names so they never inadvertently hire any of them. When a New York University Law student released a statement similarly hideous to Harvard’s, the law firm of Winston and Strawn exercised its own right to rescind the student’s employment offer.
Now these figures are going directly to the top. After mealy-mouthed administrators at Harvard and the University of Pennsylvania seemed hesitant to respond to the massacre or to use the word “terrorist,” major donors announced they were closing their checkbooks and resigning from university boards in protest.
These actions are welcome, but more must be done. Donors and anyone else concerned about the climate on campus should urge administrators to hold accountable student groups whose speech crosses the line into territory not protected by the Constitution.
In particular, one of the major pro-Palestinian student groups, Students for Justice in Palestine (SJP), demands reining in. The national organization issued a “call to action” for students to participate in a “National Day of Resistance” last Thursday, and affiliates across the country have planned more events in the near future.
The words and imagery used in SJP’s call to action are nothing short of frightening. Its Instagram account featured a graphic of a paraglider in a clear reference to the means some Hamas terrorists used to infiltrate Israel. “Today, we witness a historic win for the Palestinian resistance … reminding each of us that total return and liberation to Palestine is near,” the accompanying text stated. “The Palestinian resistance has captured over a dozen settlements surrounding Gaza along with many occupation soldiers and military vehicles. This is what it means to Free Palestine: not just slogans and rallies, but armed confrontation with the oppressors.” The organization repeated that text in a tool kit it supplied for the action, accompanied by an extra line: “National liberation is near — glory to our resistance, to our martyrs and to our steadfast people.”
The presence of at least one anti-Zionist student group such as SJP has long been correlated with antisemitic incidents on campuses. But SJP crossed a new line when it openly encouraged its members to rally in support of a terror group whose charter calls for the annihilation of Jews, everywhere, separate from the clauses vowing the obliteration of the State of Israel. Many Jewish students have already been fearful of ostracization when attending classes or expressing their identity. But fear for their physical safety is becoming ever more acute.
Universities, take note: Your lack of action is complicity.
While several university presidents have spoken out, to their credit, many more need to join them. And they all must do more when students glorify the actions of Hamas — a US-designated foreign terrorist organization — and support “armed confrontation.”
First, under Title VI of the Civil Rights Act of 1964, institutions that take federal funds have an obligation to protect their Jewish students — including from other student groups. Per the US Department of Education’s Office for Civil Rights, speech becomes harassing conduct when it is “sufficiently severe, pervasive, or persistent so as to interfere with or limit” the ability of students to join in or benefit from a university’s services or activities. Many Jewish students (even some professors) are literally afraid to go to class. Stanford Law School moved classes to Zoom last Friday out of concerns over violence. If the words of Title VI mean anything, they must protect against environments like this.
Second, all private universities have the right to shut down hateful protests without triggering any constitutional issues. Public universities are more constrained, but under Tinker v. Des Moines and its progeny — which courts have applied to universities — schools can shut down speech that will “materially and substantially interfere” with the “requirements of appropriate discipline in the operation of the school” or “invad[e] the rights of others.” Schools don’t have to wait for trouble; they can ban expression in advance if they can “reasonably forecast” that it will violate those standards.
In Melton v. Young, for instance, school officials were allowed to prohibit the wearing of a Confederate flag because it was reasonable to assume it would be disruptive in an environment of racial tension. Shouting “all of us are Hamas” while declaring that support for Palestinians “includes violence” and condoning “armed confrontation” is certainly no less likely to cause a disruption. Moreover, SJP rallies have sometimes turned violent in the past. Predictably, some did last week as well.
Finally, it is a federal crime if someone “knowingly provides material support or resources to a foreign terrorist organization.” Under Holder v. Humanitarian Law Project, that can include even some speech if done “under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.”
For instance, United States v. Osadzinski held that merely translating ISIS videos into English for pro-ISIS media organizations “clearly constituted ‘concerted activity’” in violation of the statute, even if there was no interaction with an actual member of the terrorist group.
In sponsoring and prepping the Day of Resistance events, SJP provided its chapters with public relations materials, instructing, “We must act as part of this movement. All of our efforts continue the work and resistance of the Palestinians on the ground.” As such, the government should carefully monitor SJP’s behavior. Indeed, some lawmakers have already recognized the problem and started calling for action along these lines.
SJP and other student groups can take the side of barbaric baby killers, but as donors and employers taught them this week, free speech has consequences. And accountability does not end there; university and government officials have responsibilities as well.
If and when speech crosses the line into discriminatory harassment, schools must remove their imprimatur from that evil while making sure to protect targeted communities, and they should proactively shut down events that are likely to cause material disruption or infringe the rights of others. At the very least, schools with applicable conduct codes should defund and/or revoke the charters of any organization that openly supports a group whose stated desire is to kill other members of the campus community.
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