The Regents Make a Muddle of Academic Freedom

This Wednesday the Regents Committee on Educational Policy will be taking up the Final Report of the Regents Working Group on Principles Against Intolerance which includes both a contextual statement and a proposal of new principles against intolerance.  You may recall that the Regents considered an earlier version of these principles at their September meeting.  That version--which was vague in its subject and contradictory on academic freedom--was rejected by the Regents. Unfortunately, at least part of that rejection was due to the claim of some--including Regent Blum--that the principles were not strong enough because they didn't specifically address questions of antisemitism.

Having reconsidered the issue, the Regents' committee have now made things worse. Should the Regents as a whole approve the proposed report and principles, they threaten to undermine both academic freedom and freedom of speech in the University.

The problem, as noted by numerous commentators (see here, here, here, here), including the Systemwide Academic Senate (here) and the Council of UC Faculty Associations (here), is that the Report and Principles are unnecessary if the target really is antisemitism (there are numerous rules and codes that establish its unacceptability, see here and here for only two of many) . But  if the target is anti-Zionism then the Regents are moving into prohibiting speech that is protected under the First Amendment and that is a legitimate topic of academic and public discourse.  Reading both the Report and the Principles, it is difficult to avoid the conclusion that it is the issue of anti-Zionism that is the key.

The problem is made clear in the second paragraph of the Report, which states: "Anti-Semitism, anti-Zionism and other forms of discrimination have no place at the University of California." (2)  But anti-Zionism, whatever your perspective on it, is a political position and as a result is protected political and academic speech.  The Report attempts to avoid this problem by reporting that "members of the UC community have come forward with concerns that anti-Semitic stereotypes and tropes of Jewish people appear coded as political discourse about Israel and its policies." (5)  Now personally, I have no doubt that some anti-Zionism around the world is rooted in antisemitism.  But there is a huge leap from that possibility to the claim that therefore all anti-Zionism is either antisemitism or needs to be treated as such.  But it is precisely that leap that the Report makes.

Moreover, the report itself is riddled with contradictions.   The Report acknowledges that there are that there are numerous current examples besides antisemitism of what the Working Group considers examples of intolerance and discrimination.  It also insists the that "These Principles transcend specific examples of intolerance and, following directly from the University’s mission, provide a consistent basis for responding to intolerant speech and acts." (7) But they proceed to dignify only one (antisemitism) with acknowledgment in the Principles.  They declare that "Freedom of expression and freedom of inquiry are paramount in a public research university and form the bedrock on which our mission of discovery is founded." (8) But they then call on University officials to uphold the Principles Against Intolerance (with the background assumption equating anti-Zionism with antisemitism) "to the full extent permissible under law" (10) which I suppose means as far as the courts will allow them.  But how can you both preserve freedom of expression and academic freedom (which would acknowledge the right to debate the legitimacy of any state) with the assumption that anti-Zionism is antisemitism (which I think we all can agree should be opposed)?

As Eugene Volokh (no opponent of Israel) put it in his own discussion:

Whether the Jewish people should have an independent state in Israel is a perfectly legitimate question to discuss — just as it’s perfectly legitimate to discuss whether Basques, Kurds, Taiwanese, Tibetans, Northern Cypriots, Flemish Belgians, Walloon Belgians, Faroese, Northern Italians, Kosovars, Abkhazians, South Ossetians, Transnistrians, Chechens, Catalonians, Eastern Ukranians and so on should have a right to have independent states.

Sometimes the answer might be “yes.” Sometimes it might be “no.” Sometimes the answer might be “it depends.” But there’s no uncontroversial principle on which these questions can be decided. They have to be constantly up for inquiry and debate, especially in places that are set up for inquiry and debate: universities. Whether Israel is entitled to exist as an independent Jewish state is just as fitting a subject for discussion as whether Kosovo or Northern Cyprus or Kurdistan or Tawain or Tibet or a Basque nation should exist as an independent state for those ethnic groups.

Paradoxically, what the proponents of this particular measure seem to be doing is what they are accusing critics of Israel of doing: establishing one standard for discussions of Israel and one for discussions of the rest of the world.

What makes this initiative even more unfortunate is its larger world context.  The Regents recognize that the University of California operates in a wider world and many of the campuses have been making efforts to engage more directly with international issues and challenges.  Clearly the struggles in the Middle East are one of those challenges, and it is right for the University community to engage on debate on the politics and economics of the region.  But there is another possible context the Regents might consider:  we exist in a moment when states like India and Turkey are threatening and imprisoning academics who the governments believe are critical of the self-image of the nation.  Of course, the UC Regents are not threatening to jail anyone.  But at a point when states around the world are threatening academic freedom in the name of either state policy or religious or national pride, why do the Regents want to line up on the side of the restrictions?

Antisemitic actions (painting a swastika, voting against someone because they are Jewish, etc), like all other forms of religious, ethnic, and racial discrimination, are abhorrent and in violation of a wide range of laws and university rules. Where incidents occur these laws and rules should be upheld in duly constituted proceedings.  University officials are well within their rights to oppose them.  But to redefine academic and political debate over state legitimacy as an act of discrimination is to undermine both the first amendment and academic freedom. It muddles the issue of antisemitism as well.

The Regents need to affirm the distinction between political debate and discrimination by rejecting the proposed Final Report of the Regents Working Group on Principles Against Intolerance.