New Policies Suppress Pro-Palestinian Speech

In July, Students for Justice in Palestine at the University of Maryland applied to hold a vigil on Oct. 7. The university granted the application but, after receiving numerous complaints, made a threat assessment, found “no immediate or active threat,” then still canceled the event—and, in an extraordinary and unlawful move, banned all expressive events on campus that are not university-sponsored on that date.

This may be the most egregious example of universities trying to appease pro-Israel forces by preventing protests against Israel’s brutal war in Gaza, but as students return to campus, colleges are rewriting policies that will have dire consequences on university life for years to come.

In a historic first, New York University changed its student code of conduct policy last month to make Zionist—a religious nationalist ideology—a protected identity, not unlike being Black or female. The new policy—which NYU claims is not new at all—details at length that it is now prohibited and punishable to refuse to work with a Zionist, ostracize Zionists or disseminate tropes about Zionists. These rules also apply off campus.

At Columbia University, the administration recently released recommendations from an antisemitism task force that stipulated that student groups “should have a robust consultation process before issuing statements or joining coalitions” and decried that groups “should not issue statements unrelated to their missions.” (This was in response to a number of social justice, identity-based and other student groups putting out statements critical of Israel and joining Columbia University Apartheid Divest, a coalition of groups organizing on campus.) The task force also recommended that Columbia use a highly problematic definition of antisemitism that includes “certain double standards applied to Israel” for “pedagogy and training purposes,” including in new mandatory antibias training for teaching assistants.

Universities, public and private, are bombarding students with reminders on time, place and manner restrictions—First Amendment parlance that is typically used to ensure that the state only restrict speech in a viewpoint-neutral manner, but that has instead been wielded like sledgehammers to limit protest activity and punish deviance after colleges have supposedly neutrally amended their policies to limit the exact type of speech activity used by pro-Palestinian activists.

In the same breath, colleges claim that they remain committed to academic freedom, the right to protest and freedom of expression. In another extreme example, University of Wisconsin at Madison updated its expressive activity policy in a manner seemingly straight out of 1984, banning any speech activity short of “individuals speaking directly to one another” within 25 feet of a building, a policy UWM constitutional law professor Howard Schweber called “clearly unconstitutional” because it covers “an enormous and almost incalculable amount of First Amendment–protected expression in ways that have nothing to do with ensuring access to university buildings.”

Indeed, my office, Palestine Legal, is receiving a surge of reports of students being censored and punished as they return to school, often under the pretext that support for Palestinian rights (or wearing Palestinian keffiyehs, or scarves) violates Title VI of the Civil Rights Act of 1964 by creating a hostile environment for Jews, even though Jewish students are at the center of many of the protests and wear Palestinian scarves. Often, no reason is given.

On one campus, students were slapped with conduct violations for writing an op-ed discussing a Gaza encampment in positive ways. Potlucks for Palestine have been canceled. Professors who reference Gaza or Palestine in their courses are told those courses are not fit for the curriculum, or having their syllabi scrutinized—or turned over to Congress in a manner reminiscent of the McCarthy era. Adjuncts have been fired. Tenure-track professors suspended. Tenured professors investigated.

None of these ham-fisted actions are likely to stop the growing opposition to Israel’s war on Gaza, though that is what they are no doubt designed to do.

Students and professors are watching a genocide being live-streamed before their eyes. Though many Israel supporters eschew the word, it is a term based in fact and law, and administrators should understand what is galvanizing students and professors to act. Genocide and Holocaust scholars are calling what Israel is doing in Gaza a genocide. The International Court of Justice and a U.S. federal court ruled it might be a genocide, and the ICJ is investigating further. Students are aware of this and know their colleges are complicit in Israel’s oppression of Palestinians, which is why they are calling for divestment, as they did during South African apartheid. Repression did not stop students from noisy, discomforting, controversial protests of the Vietnam War, and it will not stop students from protesting the U.S.-backed war on Gaza.

Administrator anxiety over campus protests is understandable, given opposition from powerful donors, but knee-jerk acquiescence to Israel supporters will not only not make the “problem” of campus protests for Palestinian human rights go away, but it could have immense ramifications for other disenfranchised groups wishing to speak.

Such policies could open the door to other ethno-nationalist ideologies receiving protection, as Zionism has at NYU. For example, Hindu nationalists could file discrimination complaints against Dalit students for criticizing the caste system, citing Hinduphobia. Right-wing Christian groups could file bias complaints against LGBTQ+ or feminist students for “ostracizing” those who express antitrans or antichoice views.

Already, white nationalists feel oppressed and discriminated against by DEI—often code for Black people rightly having a place in society. Will white students who oppose integration or don’t believe slavery was so bad be able to invoke antibias laws against a Black student who wishes not to be in a study group with said white student—or calls such views racist on social media, or in a public park?

And what does it mean to prohibit “certain double standards applied to Israel” in classroom discussions and lectures, and who decides? How many other countries need to be criticized before Israel is mentioned? Are rights groups like Amnesty International that have accused Israel of committing the crime of apartheid against Palestinians applying double standards to Israel? How would this even work on a course on Israel and Palestine? Would a Palestinian student be subject to disciplinary hearings for mentioning that Israel killed a cousin in Gaza?

What is often missing from the conversation is how all of this is also racist and discriminatory against Palestinians—the only group that is forbidden from talking about their oppressor without first mentioning an undisclosed number of other nations engaged in similar bad acts.

Moreover, rewriting policies and subsequently expelling students for small deviations is not good for the university. One only need to look at Florida, which both passed a law forbidding universities from spending money on activities and clubs promoting DEI and also attempted to summarily ban Students for Justice in Palestine from all campuses last fall.

For administrators looking to wield time, place and manner restrictions like a cudgel against students (or their allied professors), ask yourselves, would the same action with any other message be treated this way? Students know how climate justice protesters calling for divestment—who also occupied buildings and engaged in sit-ins in previous years—were listened to rather than handcuffed. They have heard of their college’s notable traditions of social justice and have seen images of protesters from a bygone era brandished on websites. They see how quick administrators are to issue draconian punishments without notice or hearings, pointing to time, place or manner or other rules when it comes to protests against Israel’s genocide—while breaking their own rules on due process or expression. There are two words for this, and it is called viewpoint discrimination—and it violates the First Amendment to the U.S. Constitution, the highest law of the land.

And while private universities are not bound by the First Amendment, the vast majority have made commitments to free expression and are bound to apply their policies in a nondiscriminatory manner.

It does not have to be this way. Several colleges have actually sat down to talk to their students, listened to their proposals and/or agreed to their demands, such as improving transparency in investments, extending invitations to students to speak to trustees about divestment —or actually divesting from companies aiding Israel’s violations.

There will be pressure to censor and punish. Donors have pulled funding. Congress is issuing subpoenas requiring colleges turn over records of “anti-Israel” speech and activity. The presidents of Harvard University, the University of Pennsylvania and Columbia University have all resigned as a result of how they handled campus support for the Palestinian cause.

On top of that, pro-Israel groups are flooding colleges with engineered complaints, lawsuits and legal threats demanding that universities punish and stop speech activity that causes discomfort to those Jewish students who support Israel’s war in Gaza and other policies toward the Palestinians. These lawsuits are often designed to get courts and universities to redefine what it means to be Jewish, by claiming that Zionism is a core part of Jewish identity—even though many Jews are non- or anti-Zionist—thus making speech critical of Zionism and Zionists punishable. Indeed, many of the targets of antisemitism complaints are Jewish themselves.

When it comes to the future of freedom of speech and academic inquiry on U.S. campuses, Palestine is the canary in the coal mine. This year, administrators must choose: Do they want their legacy to be one of kowtowing to donors and Congress or standing up for academic freedom, freedom of expression and an antiwar protest movement that future generations will no doubt view as a righteous one?