On Dec. 5, the House Committee on Education and Workforce hosted a hearing on the rising tide of anti-Semitism and other radicalism on college campuses in the U.S. in recent years, inviting the presidents of Harvard University, the University of Pennsylvania and MIT to testify about the speech taking place at these universities.
Therein, the university presidents seemed to be unable to say whether calls for the genocide of Jews — including calls of “from the river to the sea” by pro-Palestinian groups that call for the complete dissolution of the Jewish state of Israel and renewed displacement or even destruction of the Jewish people who live there — would violate the school’s codes of conduct.
Also at the hearing testifying was Pamela S. Nadell, Professor of History and Jewish Studies at American University, who noted in her testimony that after the attacks by Hamas on Oct. 7, 2023 in Israel, where 1,200 Israelis and others were murdered in a barbarous massacre and more than 200 taken hostage, with reported rapes, it was celebrated by certain students on college campuses. Nadell stated, “Anyone who claims to care about human rights should denounce these horrors. That so many students on college campuses not only did not but that they celebrated the violence or blamed Israel for spurring it has caused their Jewish peers, faculty, staff, and administrators deep anguish. For Jews what happened on October 7th was not anti-Zionism, opposition to the policies of Israel, it was antisemitism.”
But these types of speech are routinely allowed on college campuses.
When asked by U.S. Rep. Elise Stefanik (R-N.Y.) if calls for the genocide of Jews violated the school’s code of conduct, Liz Magill — who has now resigned of President of University of Pennsylvania — suggested that the school considers whether “speech turns to conduct” and if “directed and severe, pervasive, it is harassment” it would result in a “a context-dependent decision.”
Similarly, Harvard President Claudine Gay stated “Antisemitic rhetoric, when it crosses into conduct, that amounts to bullying, harassment, intimidation. That is actionable conduct, and we do take action.”
So, to violate the code of the conduct, holding a genocide rally might not be enough, the protesters might have to presumably chase down and target Jewish students with harassment related to the speech.
The standard being used appears to be consistent with the standard set forth in Brandenburg v. Ohio in 1969, which requires there to be an imminent danger to life and limb or of breaking the law in regulating speech for example advocating the overthrow of the government or persecution of a particular racial group. Otherwise, it was protected speech under the First Amendment and the government could not regulate it.
In this case, Harvard, UPenn and MIT are private institutions, that is, as they are not government-run state universities, they are permitted to have more expansive speech codes and codes of conduct than a state school that must uphold free speech under the First and Fourteenth Amendments.
Meaning, Harvard, UPenn and MIT could absolutely make calls for genocide of Jews (or anyone else) a violation of the student code of conduct, but they haven’t. They are choosing not to. (In the meantime, misgendering transgender students is a violation.) Why?
One place to look and are being pointed to by journalist Bari Weiss and also Pershing Square Capital Management CEO Bill Ackman are the offices of diversity, equity and inclusion (DEI) that operate out of practically every college and university nationwide, public and private.
The saying in Washington, D.C. goes, personnel is policy, and so if you wind up with a culture and an environment that results in poor outcomes, for example, university leadership that does not know how to denounce anti-Semitism at a hearing entitled “Holding Campus Leaders Accountable And Confronting Antisemitism” where they know they are going to be asked these questions, then the personnel policies that led to these leaders, teachers and faculty to be hired that fostered such a hate-filled climate in the first place must be examined.
As Ackman noted in a Dec. 5 letter to Harvard President Claudine Gay denouncing the anti-Semitism, Harvard’s use of DEI hiring policies that favor certain ethnic groups over others is illegal, stating, “A number of the faculty bemoaned that in many cases they cannot hire the substantially more qualified person if he is a white or Asian straight male as the proposed candidate ‘has to be a woman or BIPOC person.’ I was told that behind closed doors, it is common to hear: ‘I clearly don’t think this is the strongest candidate, but we can see where the train is headed. I therefore have no choice but to vote for the [lesser-qualified candidate.]’”
Ackman added, “It is made clear to the faculty that Harvard’s discriminatory approach to hiring should never be acknowledged or written about in an email. One professor said that he has been continually amazed that no one has brought a lawsuit as these practices are clearly illegal.”
Ackman is right. DEI policies that include racial and gender hiring quotas are clearly illegal under Title VII of the Civil Rights Act, which states “It shall be an unlawful employment practice for an employer… to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
What did the hiring practices have to do with anti-Semitism? Ackman included that in his survey, noting that it was reflected in the campus’ overall racist philosophy against Whites: “When I asked members of the faculty about the causes behind the Israeli/Gaza protests and the tolerance for antisemitism on campus, they explained: ‘Whiteness at Harvard is deemed fundamentally oppressive. Indigenous peoples are presented as in need of justice and reparations. Jews are presented as white people. It is therefore ok to hate Israel and Jews as they are deemed to be oppressors.’”
Ackman added, “I asked: ‘Why are the protests only about Israel versus other conflicts in the Middle East and around the globe where Palestinians and other civilians were killed?’ [Answer:] ‘Israel is the rare case where we have a hot conflict between people that are deemed ‘white’ versus people of color… The primary animating force of the [Office of Diversity, Equity, Inclusion and Belonging] ODEIB is racism-colonialism and the denial of indigenous rights. The ODEIB is a home for people who are perceived to have been victimized.”
Ackman also quoted other faculty members who stated “The ODEIB is at the service of black students, to a lesser extent brown students, and to a lesser extent LGBTQ students,” and “It’s about whiteness versus people of color,” and “The DEI framework prioritizes people on the oppressed side of the narrative.”
In other words, the DEI offices at college campuses are promoting racist doctrines that facilitate a climate that encourages and condones anti-Semitism — on purpose. These are deliberate acts.
And so it should surprise no one that, naturally, despite being private universities, taxpayers are funding these practices. They’re also funding them at public universities as well.
Fortunately, House Republicans have begun cultivating some remedies in their proposed Labor, Health and Human Services and Education appropriations bill, H.R. 5894, which includes appropriations to the Department of Education, which funds universities through the FAFSA system, includes Section 535 that states, “None of the funds made available by this Act may be used to implement, administer, apply, enforce, or carry out any diversity, equity, and inclusion office, program, or training.” It also defunds DEI hiring practices for the federal government in Section 531.
Are these provisions perfect? Not at all, they could go much further to make clear that Congress views discrimination of any kind as a clear violation of Title VII of the Civil Rights Act. The Justice Department’s Civil Rights Division could be taking actions as well against private employers that utilize these types of racial and gender hiring quotas and other forms of reverse discrimination.
One reason these practices have been going on for so long is the 1979 ruling by the Supreme Court ruling Steelworkers v. Weber which ruled that employment policies that racial preferences on the basis of race and sex in favor of women and minorities, which plaintiffs argued was reverse discrimination, were not a violation of the Civil Rights Act, in effect legalizing employment discrimination against whites and males. This was a sharp departure from more racially neutral interpretations of the Civil Rights Act by federal courts that preceded the decision.
Then Associate Justice William Rehnquist, who would go on to become the Court’s 16th Chief Justice in 1986, in his dissenting opinion, compared the Court’s rewriting of the Civil Rights Act to the totalitarian regime portrayed in George Orwell’s 1984, writing that law was written plainly, “Taken in its normal meaning, and as understood by all Members of Congress who spoke to the issue during the legislative debates, this language prohibits a covered employer from considering race when making an employment decision, whether the race be black or white.”
Rehnquist blasted the majority of the court, adding, “the Court behaves much like the Orwellian speaker earlier described, as if it had been handed a note indicating that Title VII would lead to a result unacceptable to the Court if interpreted here as it was in our prior decisions. … Now we are told that the legislative history of Title VII shows that employers are free to discriminate on the basis of race: an employer may, in the Court’s words, ‘trammel the interests of the white employees’ in favor of black employees in order to eliminate ‘racial imbalance.’… Our earlier interpretations of Title VII, like the banners and posters decorating the square in Oceania, were all wrong.”
Now, Congress could be on the verge of addressing the imbalances created, not just at universities, but also private corporations, after decades of this type of discrimination, with DEI and critical race theory training being incorporated into human resources practices. That is, if it can even pass bills like H.R. 5894.
As it is, after the Commerce, Science and Justice appropriations bill failed on Nov. 15 — 19 House Republicans voted with House Democrats to block the bill from coming to the floor — the House’s appropriations process has ground to a halt, leaving other bills including Labor, HHS and Education languishing on the floor.
As a result, the House lacks appropriations bills with which to negotiate with the Senate on. DEI at institutions receiving funds from the Department of Education could be defunded right now, but so far, final passage on these bills has not occurred. And until it does, and such provisions are signed into law, not much will change. Every university president in the country could be replaced tomorrow, but with these racist hiring practices that foster an environment hostile to Jews and Whites more broadly, it will just be meet the new boss, same as the old boss.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
