Listening to the doomsayers over the past several weeks, you might believe that America is on the edge of imposing martial law on some of our most revered institutions of higher education — or that the toppling of those institutions is near, through the withholding of federal funds and the withdrawal of their preferred tax status.
These naysayers would have us believe that such outcomes risk our very democracy, and that the government has no business applying a heavy hand in the name of protecting Jewish students from violence, intimidation and harassment.
They would, however, do well to consider the hypocrisy of their position.
Those raising the alarms might imagine an executive order directing federal troops onto campuses in the name of protecting Jewish students. Or they might imagine a Supreme Court decision endorsing the “weaponization of the IRS against a political adversary of the president” through the revocation of the tax-exempt status of a private university, as Harvard professor and former Treasury Secretary Larry Summers recently lamented.
Such possibilities are easy to imagine because this has all happened before.
The former occurred when President Dwight Eisenhower issued Executive Order 10730 on Sept. 24, 1957, ordering federal troops to the campus at Central High School in Little Rock, Ark. to enforce racial desegregation.
The latter happened in 1983, when the Supreme Court issued its decision in Bob Jones University v. U.S. The court ruled that the private Christian university’s First Amendment rights did not override the “fundamental” governmental interest in “eradicating racial discrimination in education.” In that case, the government opposed Bob Jones University’s admissions practices for Black applicants and its ban on interracial dating.
I imagine that today’s incessant handwringers, raising alarms and fretting over lost freedoms, would have fully supported the presence of federal troops in Little Rock and the revocation of Bob Jones University’s tax-exempt status. To them, the argument would have been simple: Schools can enjoy federal assistance or they can discriminate in ways that violate federal law, but they cannot do both at the same time.
So why the inconsistency? Why is it permissible to punish Bob Jones for discriminating against Black students but not Harvard for throwing its Jewish students to the wolves?
Antisemitism on college campuses since the Hamas attack on Israel on Oct. 7, 2023 has skyrocketed to dizzying levels, with no meaningful steps taken to address it — that is, until the Trump administration forced the issue. Up to that point, 83 percent of Jewish college students either experienced or witnessed antisemitic incidents. Sixty-six percent believed that their university would not prevent antisemitic incidents. Forty-one percent said they were forced to hide their Jewish identities, according to a survey by the Anti-Defamation League.
At Cooper Union in New York, Jewish students hid in the library as crowds shouting “Free Palestine” banged on the windows and doors. Cornell University still employs Professor Russell Rickford, who shouted into a microphone that Oct. 7 was “exhilarating” and “energizing.” At San Francisco University, vandals defaced the Hillel Center with the word “Khaybar,” a reference to early Muslims slaughtering a tribe of Jews.
Columbia University still employs Professor Frank Guridy, who held a “teach-in” class in its encampment, a space Jewish students were only permitted to enter if they disclaimed their identity as “Zionist.” As the vast majority of American Jews identify as Zionist, almost all Jews were banned from this swath of campus and Guridy’s class.
Few dispute that the situation for Jews on campus has been dire, nor is there much dispute that universities have failed to protect their Jewish students. Rather, today’s apologists for these universities claim to place the sanctity of freedom of speech above all else. Never mind that these same apologists were totally silent when angry mobs shut down university classes or events with pro-Israel speakers. Never mind that not one of them spoke out when the Biden administration’s federal investigation of Brigham Young University implicated another First Amendment right — the freedom of religion.
This is not about consistency, but rather ideology cloaked by a semblance of virtue. Certainly, there would be no apologies for a university that employed professors who were exhilarated and energized by Ku Klux Klan lynchings, or one in which Hispanic students were forced to hide from angry mobs.
By design, federal civil rights laws and federal funding can be weaponized as a cudgel to force wayward recipients of such funds back into compliance with the law. This is a feature, not a bug. They have been used at various points to protect Black, Hispanic, Muslim and gay students. Jewish students have the right to enjoy the benefits of those powers as much as any other minority student.
Susan Greene is a partner at Holtzman Vogel, a law firm based in Washington, D.C. Her law firm does work on antisemitism and has cases involving universities.