Free-Speech Group Aims To Weaken Biden Guidance on Jew-Hate

FIRE files proposed brief in Harvard case

A Palestinian flag flies from a Harvard building.

The Biden administration’s guidance to colleges about antisemitism violates the First Amendment, the free-speech advocacy group Foundation for Individual Rights and Expression argues in a new court filing.

FIRE complains about a May 7, 2024 “Dear Colleague” letter from the assistant secretary of Education for Civil Rights, Catherine Lhamon. The letter defines a hostile environment for the purpose of Title VI of the Civil Rights Act of 1964 as one that “is so severe or pervasive that it limits or denies” a student’s ability to participate in or benefit from an educational program.

FIRE says the standard should be “severe and pervasive,” not “severe or pervasive.” It also says that to be actionable, a student’s education has to be denied, not only limited.

The filing came in the form of a proposed amicus curiae, or “friend of the court” brief in the Kestenbaum v. President and Fellows of Harvard College case. In that case, before Judge Richard Stearns of the U.S. District Court for the District of Massachusetts, Jewish students are suing Harvard, declaring that it “has become a bastion of rampant anti-Jewish hatred and harassment.” The name plaintiff in the case is Alexander “Shabbos” Kestenbaum, who was a student at Harvard Divinity School and is represented in part by lawyers from the firm Kasowitz Benson Torres LLP.

“Ruling Title VI requires Harvard to regulate objectively offensive speech that is only ‘severe or pervasive,’ or that does not deny, but merely limits, a student’s access to education, will violate the First Amendment rights of the speaker,” the FIRE filing says. “An outdoor display decrying Zionism for example, might be severe, but relegated to one spot on campus, not pervasive. A protest march through the University could meet the definition of ‘pervasive’ without being severe,” the filing says, contending, “the current moment presents a real danger of silencing student and faculty expression in the name of anti-discrimination.”

It’s not clear whether Judge Stearns will accept the amicus brief. Such briefs are more typically seen at the appellate level than early stage that this case is at, with Kestenbaum. Harvard also faces at least two other federal court cases stemming from its mishandling of antisemitism on campus. 

Legal issues aside, the filing points to a practical challenge that Jewish students have faced in trying to improve their situation on campus. Many of the faculty who might be sympathetic are aligned with FIRE, which had been advocating for more free expression and against “cancel culture” on campus. 

Yet it also points to a strength of the Jewish students’ argument, about a double standard. Anyone trying to defend campus activity on the grounds that it “does not deny, but merely limits” access to education by Black students, or female students, or gay students would be run off the Harvard campus on a rail. Yet here FIRE comes with an argument that the federal government is committing a First Amendment violation merely by insisting that Jewish students get the same full access to a college campus that other minority groups are guaranteed. 

FIRE’s funding isn’t transparent, but if it winds up participating in the case, it may attract some scrutiny about possible overlap between its funding and that of anti-Israel foreign policy groups. 

The FIRE brief suggests that Harvard address problematic conduct “using content-neutral policies and, if warranted, criminal statutes,” offering the Massachusetts assault and battery statute as an example. Yet when such cases are brought, they generate enormous pushback from advocates claiming that criminal charges are excessive and heavyhanded. The Sunday Boston Globe has both a news article and a column along those lines, apparently coordinated by publicity allies of the anti-Israel students. So when the universities try to handle it they are told it’s a job for the police, and when the police try to handle it they are told it’s a job for the universities. You start to suspect that rather than consistent application of principles, what this is about is achieving the goal of impunity for anti-Israel activists.

I’m not suggesting that mere anti-Israel activism should be a punishable offense either under university policies or state or federal law. Nor am I suggesting that antidiscrimination law should trump the First Amendment. But what we’ve seen on campuses has far exceeded mere anti-Israel activism. If you want to talk about the First Amendment, what about not just the free speech rights of the anti-Israel students and faculty, but the free exercise rights of the Jewish students? The bigotry wouldn’t be accepted if the targeted group were anyone but Jews. 

Kirchick on the new blood libel: Jamie Kirchick, former New York Sun intern, has an excellent piece in the New York Times. He writes: 

One of the greatest mass delusions of the 21st century is the belief that Israel is committing a genocide against Palestinians. This grotesque moral inversion — in which a genocidal terrorist organization that instigated a war with Israel by committing the largest massacre of Jews since the Holocaust is absolved of responsibility while the victim of Hamas’s attack is charged with perpetrating the worst crime known to man — began taking shape before Israel even launched its ground invasion of Gaza.

A charitable description of those imputing genocidal motivations to Israel is that they are ignorant, essentially believing the word to mean “large numbers of civilian casualties.” (Here it’s worth noting that the United Nations, to little notice, has significantly lowered its estimate of the number of women and children killed in Gaza.) For others, accusing Israel of genocide is an emotional outlet for expressing outrage at such a horrific loss of life. A third, more pessimistic, characterization of the ubiquitous genocide canard is that it is only the latest iteration of the ancient antisemitic blood libel, which held that Jews murdered gentile children in order to use their blood for religious rituals.

On that topic, see my May 15 piece for the Algemeiner, “How the Pro-Hamas Campus Protests Are the Latest Version of the Blood Libel.”

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