Earlier this month, President Trump signed an executive order addressing anti-Semitism on college campuses. While noble in intention, the order poses some serious concerns for defenders of free speech.
In the preface to his executive order, Trump noted that anti-Semitic incidents have been increasing since 2013, particularly in schools and on university and college campuses.
Data from the Anti-Defamation League (ADL), a nonprofit organization committed to protecting the Jewish people and securing justice and fair treatment for all, confirms Trump’s reasoning. In its 2018 Audit of Anti-Semitic Incidents, the ADL reports that anti-Semitic assault, vandalism, and harassment in the United States rose from 751 reported incidents in 2013 to 1,986 incidents in 2017, with a slight drop to 1,879 incidents in 2018. Of the 2018 incidents that occurred, 810 (43 percent) took place in colleges/universities, Jewish Institutions/Schools, and non-Jewish schools.
The Executive Order
As it stands, colleges, universities, and K-12 schools that accept federal funding are required to enforce Title VI of the Civil Rights Act which prohibits discrimination based on race, sex, or national origin. Trump’s executive order expands Title VI to apply to anti-Semitism. The order also directs schools to “consider” the definition of anti-Semitism adopted by the International Holocaust Remembrance Alliance (IHRA) and the examples of anti-Semitism IHRA provides.
Assault and Vandalism
Interestingly, schools already punished assault and vandalism, two of the three forms of anti-Semitism ADL references, before the executive order.
When several Chicago students reportedly showed a fellow student pictures of a concentration camp and told him that “he should wear striped pajamas” and that they were going to “put him into an oven,” the students received one-day suspensions, wrote apologies to the victim, and visited a Holocaust Museum to learn more about the sobering history behind their remarks.
Likewise, when a Goucher College student scrawled a backwards swastika and death threat in a college bathroom, the student was arrested for malicious destruction of property and banned from campus.
Indeed, it would be silly for a school not to punish assault or vandalism—regardless of the motivation. If a student or faculty member was harmed, it could discourage future applicants and jeopardize corresponding revenue. Similarly, when property is harmed it incurs costs to the school and if sustained, could also discourage attendance and thereby lessen school revenue. Thus, it seems unlikely that the new executive order will somehow inspire new efforts to combat anti-Semitic assault or vandalism.
Where the administration’s executive order will likely have an impact is on so-called anti-Semitic harassment. While schools generally punish assault and vandalism, they are less consistent in their responses to verbal condemnations of certain people groups, and for good reason.
The U.S. Supreme Court has long held that even offensive speech is protected by the Constitution’s First Amendment. In Terminiello v. Chicago, the Court overturned the arrest of a former priest whose anti-Semitic speech inspired a riot. Justice Douglas wrote for the majority:
The right to speak freely and to promote diversity of ideas and programs is one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.
By refusing to silence even statements that may seem discriminatory, colleges, universities, and K-12 schools encourage students to promote the diversity of ideas and even disagreement that preserves our nation from those who would impose their views on others.
Trump’s executive order threatens this heritage. The IHRA definition of anti-Semitism, for example, forbids students from “Denying the Jewish people of their right to self-determination, e.g. by claiming that the existence of a State of Israel is a racist endeavor.”
With this guidance, schools could forbid students from challenging the State of Israel or the United States’ support for that state—a prohibition that leaves little room for discussing alternative viewpoints.
But not only can schools implement these prohibitions on speech, they are incentivized to do so. In 2016, colleges and universities received $183 billion in federal funding and K-12 public schools received $706 billion. If schools don’t comply with the President’s new executive order, they risk losing those funds. Thus, it is in their best interest to enforce the tightest possible restrictions.
A door to power once opened is hard to close. If a seemingly small imposition on freedom of speech is allowed for a good cause, others may use the same justification to introduce larger restrictions on speech for less worthy causes. Students, professors, and alumni should continue to hold their schools accountable and protect free speech. They can also reach out to community leaders and lawmakers to call for greater speech protections. While opposing anti-Semitism is a noble goal, we must be careful not to endanger cornerstone freedoms in its pursuit.