Are You a Self-Made Job Market Kryptonite? Develop Some Common Sense or Suffer the Consequences. Also, a First Amendment Primer Tailored for Your Campus Needs

Since writing this, and reading this, I expected things to deteriorate, and of course, they have: students who have publicly supported terrorists are suing private law firms that rescinded their job offers. This is absurd for reasons I’ve explained in a prior post:

It is also important to distinguish the right to free speech from the consequences of putting oneself out in public espousing horrendous views. Several law students in fancy schools are finding out, to their shock and surprise, that law firms are not all that keen to hire people who publicly extol the virtues of slaughtering, raping, maiming, burning alive, beheading, and kidnapping people. That being an antisemitic idiot with repugnant views is not a professional asset and has consequences in the job market shouldn’t be particularly surprising, unless you spent your undergraduate years under the tutelage of morally bankrupt people for whom espousing these “edgy” and “interesting” views was a calculated career strategy that catapulted them to prominence in fields like ethnic studies (read here a courageous letter by a UC Regent calling out the Ethnic Studies faculty council letter for what it is.) No wonder these students think they can spew horrid opinions in public and face no consequences whatsoever. What I find most amazing about the whole thing is that some of my colleagues are surprised by what they see on the campus quad. How is any of this surprising? Academic institutions, including the ones I work for, have breathed life into this Golem for years, and the last thing they should find astonishing is when it comes for them. They taught these people, but they didn’t educate them, and the proof’s in the rancid pudding.

But the thing that really gets my goat about this ridiculous lawsuit is that I’ve spent years either representing, or consulting for, activists, direct action folks, civil disobedients, etc. Doing this kind of work hones one’s fine sense of smell for who is the real deal and who is a performative, egomaniacal joke, i.e., who truly wants to effectuate change in world and who wants people to applaud them online. One tell-tale sign is that people who truly and selflessly believe in what they are doing are willing to take the risk of harsh consequences for what they believe. The animal rights folks I helped defend did not believe they were committing a crime by saving animals and documenting animal abuse in factory farms, but they did know that the counties that house these farms and the Farm Bureau lobbyists that fund the justice system in these counties would consider what they did a crime, and the result could be arrest, prosecution, conviction, and incarceration. They welcomed this eventuality, which would be very unpleasant for them, because they thought that criminal trials would be a way to raise the issues publicly whether or not they won and lost (of course, these are not all animal rights activists: many of them would rather make pig noises at Jewish speakers in City Hall than to do actual animal rights work, i.e., help the many animals who suffer from the war on both sides of the border. But that’s neither here nor there).

Anyone who thinks that a private lawsuit against a firm to protect one’s own bright future and pecuniary interests is going to move the needle on war in the Middle East is either disingenuous or an idiot (or both). Perhaps as disingenuous, or as much of an idiot, as the NLG clowns who advised law students that disrupting an event at someone’s private residence, which you are attending thanks to the owner’s personal generosity, somehow counts as consequence-immune free speech. Since it appears that all these supposed lawyers and law students have completely forgotten what they were taught in constitutional law, here are some reminders of the basics, complete with examples.

The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Like the entire U.S. Constitution, the First Amendment operates in the individual-versus-government space. It is the government that is forbidden from curtailing one’s free speech in public, not private entities–be they individuals, faculty members, students, student groups, etc.–and certainly not in private spaces. This is why suing a private employer who doesn’t want a shrill terrorism supporter to draw a salary from them is absurd. Here are a few other examples:

Also, odious as the “context” comments of the university presidents were at the hearing were, they were legally correct: when deciding whether something is protected or not, context does matter a lot:

Here are some recognized exceptions to the freedom of speech:

And here are the rules about some of the exceptions that come up most frequently in the context of student and faculty opinions about the war:

Fighting Words. These are defined, per Chaplinsky v. NH (1942), as words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” The burden of proof is pretty high–Clear and Present Danger, per Termiliano v. Chicago (1949).

Defamation. I’ve seen examples of horrific maligning of people on social media. Insofar as these people are public figures, it will be hard to prevail on defamation. Per NYT v. Sullivan (1964), “[t]he constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Incitement to Imminent Lawlessness/Violence. Here, too, hyperbole doesn’t suffice to create the exception: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The example given in Schneck v. U.S. (1919) is the classic “shouting ‘fire!’ in a crowded theatre.”

True Threat. It is not protected speech to “direct a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death” (VA v. Black (2003)), but most of the stuff that gets yelled around campus would not be classified as “true threat” but rather as “political hyperbole.” For example, to say during the Vietnam war, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” is the latter (Watts v. U.S. (1969)).

Solicitation to Commit Crime. In criminal law, at common law, the term “solicitation” applies to a scenario where a person requests or induces another person to commit an act that would amount to a felony. In the context of the First Amendment, the Supreme Court has punted on opportunities to clearly define criminal solicitation. Again, judging from the other exceptions, specificity would be key here.

As you can see, this means that free speech is very broad in the U.S. context. Which doesn’t mean that using it incessantly is necessarily a good idea. Recently, a beleaguered Harvard concluded that the best policy is to stay away from statements and proclamations on matters that do not directly concern the educational mission of the school (Syracuse is following, and I expect other schools as well–my own workplace does this, and this letter from the Dean of Stanford Law makes the same point.) But this does not apply, obviously, to individuals within the university. I know very well what it’s like to work and study when surrounded by behaviors that are covered by the First Amendment, none of which on its own is beyond the pale, but whose cumulative effect is corrosive. Because, just like the people yelling and distributing terrible flyers, you are an individual with free speech rights, use them! Take a page out of Ron Hassner’s initiative. I joined him for one night at my office and it felt good to do or say something, too, not just remain mute in the face of upsetting things happening.

That said, you and your psyche come first, and we could all immensely benefit from stopping the ridiculous concept creep of the phrase “I felt unsafe.” Choose your battles, act accordingly, and shrug off any nonsense that will not move the needle one way or the other. If you think that this stuff will affect your actual safety (not just your job satisfaction), then I think you should act.

#FacultyVigil Tomorrow Night at My Office

My colleague and new friend Ron Hassner, who teachers political science at Berkeley, has been sleeping in his office for more than a week. Ron is protesting against the university’s failure to protect Jewish students from violent antisemitic behaviors, like the horrifying attack of last week. His list of demands is fairly modest: he wants Sather Gate opened, protection for speakers assaulted by students with opposing views, and campus-wide education on antisemitism and Islamophobia. Julia Steinberg reports for The Free Press:

“This is a campus known for its protest,” Hassner says. “Put up propaganda! Hang it everywhere! But don’t physically block students from walking. Don’t harass them. Please don’t strangle them. I think it’s possible to advocate for the Palestinian cause without strangling people.” 

I agree, which is why I will join Ron and several of my colleagues at the UC system to stage a #FacultyVigil tomorrow night. We all want to work and study safely. The boundaries of free speech in the US are wide enough to include lots of ways to disagree and express conflicting opinions without resorting to violence and terrorizing. If anyone wants to visit on Tue, I’ll likely be at the office (333 Golden Gate #320) from 7pm until my 9am class the next morning. If anyone shows up, maybe we can do a movie night (I propose Footnote) or we can just have a nice chat.

Malcolm Feeley on the Universities’ Stammering on Antisemitism

(pictured above: architect Shari Mendes assisting military troops in handling female genocide victims.)

Prof. Malcolm Feeley, my legendary PhD supervisor and, for the last 25 years, my mentor, coauthor, and good friend, is one of the pioneering giants of the law and society field. He is universally admired and loved, and for good reason. Amidst the many characteristics that make him an outstanding researcher and thinker is his almost mythical ability to make sharp and revealing analogies across space and time. For example, in his amazingly creative address upon receiving the Paul Tappan prize, he compared convict transportation in the Early Modern era to electronic monitoring (I commented about it here). In his work on guilty pleas (Malcolm is the granddaddy of lower criminal court research) he made the paradigm-generating analogy between the prosecutor-driven generation of plea bargains to the transition from bazaars to supermarkets.

In an excellent opinion piece in The Hill, Prof. Feeley, who taught and researched at elite universities for fifty years (including a long stretch at Berkeley and respectable stints in academic administration, including as the President of the Law & Society Association and the Chair of the JSP program at Berkeley), draws on his formidable analogy powers to diagnose the reason for the stuttering university responses to the eruption of antisemitism on campus. It is a bitter, cutting analogy between the decisions faced by the university presidents and those faced by President Roosevelt during World War II not to save the Jews from the concentration camps. He explains:

Early in World War II, President Franklin Roosevelt learned of Nazi plans to systematically murder European Jews. Later, advisors urged him to order the bombing rail lines leading to Auschwitz. He rejected their pleas. Actions to prevent these murders, he responded, would turn the war into a campaign to save Jews, and in so doing undermine American’s support for the war.

And now?

On Oct. 7, we witnessed the most deadly pogrom, excepting the Holocaust, against Jews in modern history, and thousands of people danced in the streets, not only in Beirut, Damascus, Baghdad, and Tehran, but also on campuses in Philadelphia, New York, Cambridge, Ithaca, and Berkeley. At the time, no university official on a major U.S. campus that I know of unequivocally denounced this action as a pogrom against Jews and excoriated their students and faculty for celebrating the occasion.

Two months later, on Dec. 5, presidents of three major universities at which celebrations of the pogroms took place — Harvard, MIT, and the University of Pennsylvania — were questioned at a hearing of the House Education and Workforce Committee. Their collective responses were even feebler than those issued immediately after the pogrom. When called upon to say that the calls for the support of the pogrom of Oct. 7 were antithetical to Harvard’s institutional values, President Claudine Gay could only say, “I personally oppose this,” and then parse the speech/action distinction, defend speech, and announce that Harvard had beefed up security for its Jewish students. Nowhere did she say such views had no place on Harvard’s campus, and that she was ashamed to have such students and faculty at Harvard. President Sally Kornbluth of MIT and President Elizabeth Magill of Penn, fared only slightly better. All reacted defensively. None showed moral clarity, or demonstrated leadership. All obfuscated. At best, they seemed managers trying to cope rather than inspired leaders of noble institutions. At these universities, where almost all the students receive A’s, these educators failed.

This is not because they are anti-Semites or embrace the cause of Hamas. Rather, I think it is because they face the FDR dilemma: If they single out, and in no uncertain terms condemn, anti-Semites on their campuses, they run the risk of alienating a significant portion of the social justice constituency that they have helped to create and in part to whom they owe their positions.

You should read the piece in its entirety.

Malcolm also includes a factual tidbit I was unaware adds a piece of information that I didn’t know, but which doesn’t surprise me: a colleague of ours hired a survey firm to do a poll at Berkeley, and it turns out that 53% of the students enthusiastically shouting “from the river to the sea”–folks enrolled at the best public university in the United States–don’t know which river and which sea, along with much other breathtaking ignorance.

I deeply and fervently hope that the many thousands of academics around the world who admire and respect Malcolm will take the time to read his opinion piece and consider where they stand vis-á-vis the poison on campus. I also hope that they read the heartbreaking article in the New York Times about the horrific and systematic rapes perpetuated by Hamas terrorists during the October 7 massacre.

If Someone Says, “Thanks for a Great Semester!” Give Them a Turing Test

Happy Christmas to those who celebrate the birth of their Savior, and a Happy Jewish Carpenter day to those who eat Chinese food! In lieu of Frankincense and Myrhh, I bring to you today a higher(?) ed story to gladden (or besmirch) your Yuletide.

Because working full time at UC Law SF and studying full time at the GTU (and parenting full time, of course) was apparently not enough, this fall I taught, via Zoom, an undergraduate course at UC Berkeley which, last I checked, was the highest ranked public university in the nation. I kept most of my tales of woe about this experience off the socials and this blog, though a handful of regular readers (specifically, those who had professional dealings with me that were related to said class) got a running commentary of my experiences with our bright young minds (perhaps more of a running commentary than they would wish for). I may some day share more about this peculiar adventure and what it taught me about the future of humanity. Today, however, offered such a remarkable coda to the experience that it’s just too good not to share.

This morning at 9:35am, I received an email notification that “Melany’s OtterPilot Has Joined Your Meeting.” Seeing as my usual class time was Tuesday at 9:40am, this would appear to be a praiseworthy and timely log-in, except for two facts: (1) the entire semester–including the final exam–ended weeks ago; and (2) today is the day after Xmas which, even if you were spectacularly obtuse and spent your semester under a rock, would have clued you in to the fact that no class would be taking place.

I was ablaze with curiosity, so I logged on as well, to see who I would encounter there. And, indeed, right there in the Zoom room was a black rectangle representing Melany–no different than the one that represented Melany all semester long–waiting for me. I popped on my camera and said, “well, hello there,” and the rectangle disappeared.

A brief Internet search explained that OtterPilot is an AI thingy that essentially attends virtual classes for you so that you don’t have to. It is quite possible that this was in wide use throughout the semester, i.e., for all I know, you guys, I spent the last four months of my one wild and precious life lecturing to 180 bots.

If that was the case, it would certainly explain (1) the turned-off cameras (“respect people’s privacy/trauma/inconvenience/camera shyness”); (2) the lack of participation (“take into account that they’ve been through a pandemic”) and (3) the, how shall we say, lackluster executive function, general knowledge, and communication skills that were in evidence throughout.

Joyeux Noel to all!

Association of Jewish Studies, Day 1: Dreyfus Postcards, DEI and Antisemitism, and Daughters’ Inheritance

As hinted in various posts, my big professional pivot has been in the works for a while. This year I started my rabbinical studies at the International Institute of Secular Humanistic Judaism (IISHJ). IISHJ requires all its rabbis to complete an advanced degree in Jewish Studies, which brought me to the Graduate Theological Union’s Richard S. Dinner Center for Jewish Studies. In addition to my full-time work, I’m studying full time for a masters degree, and this week I finished the first semester. My plan is to pivot my scholarship at UC Law SF toward Jewish law and Jewish studies, and I have big plans for fostering and encouraging a vibrant academic Jewish legal experience on campus. After retirement from legal academia, I plan to turn to rabbinical work full time.

Today marks an important milestone: I attended my first-ever annual meeting of the Association for Jewish Studies which, conveniently, is being held in San Francisco. I’m not presenting anything–my two brand-new papers haven’t been submitted for publication yet–and it’s been a great experience to listen, rather than talk! Getting into a new field requires quite a bit of humility, and I confess to being overwhelmed when I visited the huge book exhibit and saw the vast wealth of knowledge and original research. It’s daunting and, at the same time, exciting to join such a prolific enterprise, and I wonder what I can contribute to this flourishing field.

I started my day with a panel on visual representations of violence, in which Louis Kaplan introduced us to the work of photographer John Guttman. Trained as an expressionist painter, Guttman switched to photography when he figured that he would not be able to leave Berlin with money, but would be allowed to take expensive equipment out of the country. He bought a wonderful camera and somehow persuaded a German news agency to be their foreign correspondent in San Francisco… and ended up in a gorgeous apartment in Russian Hill. From Tara Kohn we learned about how archival gaps and absences affect our ability to learn about photography–in this case the work of Alter Kacyzne, who documented Jewish life in Poland in the 1920s and 1930s. Only 700 of Alter’s many photographs are in existence–but evidence of their existence exists in copies and references, as if they were fossils. But the most interesting bit, to me, was Karine Macarez’s presentation of… postcards, posters, and trading cards about the Dreyfus Affair! In my work on true crime podcasts, I always think about Marshall McLuhan’s The Medium Is the Message reminder, but here is proof that participatory, sensationalist true crime engagement–complete with wrongful conviction activism–existed through the creation, sale, and exchange of these postcards, which are rife not only with antisemitic tropes (used both straightforwardly, as in the case of Dreyfus’s maligners, and ironically, by the Dreyfusards) but also with actual forensic evidence: people would buy and collect postcards bearing Dreyfus and Esterhazy’s handwriting.

After lunch, I attended a panel in which Amy Simon (Michigan State), Greg Drinkwater (Berkeley), Nathan Paradise (Minnesota), and Lauren Strauss (American) spoke of their activism–unpaid, emotionally taxing, and exhausting work–to include Jewish concerns and marginalization in the academic curriculum, especially after the Hamas massacre and the eruption of the war. The session was very well attended–standing room only–and offered some thoughts about whether, and to what extent, Jewish issues (including antisemitism) can and should fit in a DEI framework. Lots of useful takeaways, including the huge variation among campuses not only in policies and curricula but also in the interpersonal relationships between the different personages: campus administration, ethnic studies folks (often, but not always, a department devoid of Jewish voices), Jewish studies departments (which are not supposed to be advocacy centers but sometimes become such), Islamic studies departments and colleagues (who sometimes form great coalitions) and the student body (including a big conversation about the extent to which TikTok and the like shape young minds before they even come to college.) It was a great conversation which, while not offering a ton of hope, offered some interesting perspectives and ideas to try, and made me feel a lot less alone than before. I also plan to read Kenneth Stern’s The Conflict Over the Conflict (and will post a review soon.)

I then got to hear a fabulous roundtable about women and biblical law, featuring several interesting projects. Yael Landman, who uses a law-and-literature lens, discussed women’s property rights, especially regarding daughters’ dowries and inheritance; Samantha Rainford, who also studies inheritance roles, highlighted how the the daughters of Zelophechad had to be legally “made into men” in order for their inheritance to fit into the patriarchal lens. GTU’s very own Jennifer Lehmann studies maleness and masculinity in the Bible; as she explains, while men have been the focus of Biblical literature, only recently have they been studied through a gendered lens. She discussed two fascinating examples: Jacob’s sexuality in the Leah/Rachel bait-and-switch, and Joseph’s sexual victimization at Potiphar’s house (including issues of sexual servitude–and comparisons with Hagar.) And Sarah Shechtman discussed embodiment in biblical ritual.

I learned a ton, bought a heavily discounted set of the Bavli with English translation, and I hope made some new friends. Back tomorrow for more!

The Israeli “Brain Drain” Will Not Reverse Itself Anytime Soon

Yesterday I read an op-ed by Aaron Ciechanover, Chemistry Nobel Laureate for 2004, in which he addresses the growing antisemitic crisis in American universities. Opining about the Harvard/MIT/Penn presidents’ hearing, he has many harsh words for these universities not only as morally compromised, but also as poor places for research to flourish. Unfortunately, the Ha’aretz website does not offer a translation to English, but I’ve translated a relevant part:

A university’s duty is to protect the truth. Nobel Prizes cannot serve as a cover for lying, incitement, and calls to destroy a people and a country. The truth they represent cannot replace the demand for social, historical, and geopolitical truth, for equal morality, and especially for truth, which is a cornerstone of education. Education, not studying. On the difference between the two, which these administrations failed to understand, Einstein said, “education is what remains when we forget all the things we studied in school.”

We must not ignore the problematic aspect of these protests, which radiate to the international scientific collaborations of Israeli academy and, from there, to a negative influence on U.S.-Israel relations. Israel is becoming a cultural pariah. It is essential to use every measure to fight the protests–through Jewish donors and economic institutions led by Jews, or through dialogue with university leadership.

In other words: antisemitism is bad for science. But Ciechanover goes on to hypothesize about Israeli scientists and academics:

By the same token, an opportunity for Israel has opened. Israeli researchers who planned to return during the judicial overhaul sat on their suitcases or tried to look for jobs in the United States. The trend has reversed itself. Many want to come home. Moreover, senior Jewish scientists are looking, today, for a home in Israel–fleeing the rising tide of antisemitism, which hurts them and their children. If positions are found for them in Israeli research universities and in the Israeli tech industry, they will change the course of science and industry in Israel. “Amidst the hardship lives opportunity,” Einstein said. It must be used.

Even though Ciechanover is a gifted, eminent scientist, I have a sense that he is not basing this assumption on data. To be fair, I don’t have any solid data either (though I plan to collect some–I’ll share more as I get to work). I’ve had conversations with dozens of Israeli-American colleagues, many of them with kids, who are deeply distressed and keenly aware of the fact that, antisemitism-wise, things are not looking up for them or their families. I hear of several people in my immediate surroundings who flew home to visit and comfort family and friends and even to volunteer for the reserves or for much-needed agricultural work. But there’s a big difference between that and deciding, or even seriously considering, to permanently return to Israel. There are three main considerations against it, which Ciechanover probably knows all too well:

Personal and family safety. It used to be that the message marketed to diasporic Jews was that their “safe place” was Israel. Who, among those following the news, can still say that with a straight face? Not only has the horrific Oct. 7 massacre shattered any illusions that the government was properly and responsibly protecting its people, but the war is continuing to demand sacrifices (and take a huge toll on human life on both sides) and is anything but safe. Israel is a small country. Everyone I know knows people who have been murdered, raped, kidnapped. Everyone I know has close family members serving in the army. And many Israeli academics have children; the last thing they want for their kids is to be drafted into an irresponsible army, commanded by people their parents do not trust. It’s hard to convey how desperate this dead-end sense feels because public discourse in America has muddled the concept of “feeling unsafe” by equating it with “being upset because someone said something that didn’t sit well with me.” Believe me, Israelis know the difference. Going to work in American universities is supremely shitty these days, I grant you that, and I don’t mean to make light of people’s very real distress that they are losing not only [people they thought were] friends, but entire research networks. I feel the same way and am in the process of a fairly aggressive academic pivot for this very reason: I can no longer breathe the same air with many of the people in my field. But that is a tragedy of the soul, not a serious risk to the flesh, and people will put up with a lot of unpleasantness to provide for their families. Israeli scientists are keenly aware of the gaping chasm between being deeply unhappy at work and being slaughtered by homicidal monsters or sent to fight by a psychopathic career criminal and his trigger-happy messianic government, without a real sense that the people in charge have any idea what they are doing or care about their people. No one wants this for their kids or for themselves.

Political problems. This is of course closely related to the deeply worrisome collapse of Israel as a free, democratic country, a long process decades in the making, which intensified in the months before the massacre and the war through the frightening actions of Israel’s 37th government. I’ve written plenty about why hundreds of thousands of Israelis, including my mother and my late father, protested daily in the streets. Academics were a huge part of these protests; in every march I attended there were big contingents wearing t-shirts emblazoned with “without democracy there is no academy.” As one of the most prominent academic protesters, Ciechanover knows this all too well: he was one of the signatories on the Nobel Prize Winners letter against the regime overhaul, warning Netanyahu and his cronies that countries with no separation of powers or freedom of thought end up wrecking their research infrastructure. On one occasion, Ciechanover himself led 50,000 protesters in a march for democracy in Haifa (see image above). Political polls consistently show that academics in Israel were, and still are, among the staunchest resisters to Netanyahu’s agenda. Here in the U.S., academics, scientists, and tech workers are leading UnXeptable, a grassroots movement of expats supporting the Israeli protest movement. Not only have these problems not gone away; many of us see them as the cause for the military and intelligence failures that allowed the massacre to happen, clamor for Netanyahu’s resignation (shameless, despicable man; the buck never stops with him) and are deeply horrified by the atrocities that Ben Gvir’s goons are performing in Gaza and elsewhere, including the appalling murder of Yuval Castleman and a home-grown pogrom at a peaceful village. For many of us, the war has not quelled the spirit of the protest; au contraire, it has intensified its urgency.

Personal growth and prosperity. And all this is related to the fact that, for decades, Israeli governments did very little to encourage promising scientists to remain in the country. My colleagues and I were part of a huge brain drain. Lots of good people who are flourishing, publishing, winning grants and awards, and well respected in their fields, came here after years of subsisting on meager pay as postdocs without prospects in Israeli universities. A disproportionate number of PhDs in many areas, including STEM, means that most people cannot find a job in Israeli universities right away (or ever). University pay, for better or worse, is governed by a collective labor agreement that does not allow universities to pay competitive salaries or match competing offers people receive from universities outside Israel. Back in 2013, the New Yorker ran an explainer story showing that the growing economic distress in Israel–the fruit of Netanyahu’s systematic dismantlement of the welfare state and destruction of the middle class–mean that many people in their thirties and forties (such as academics with young families), in the face of stagnated wages and rising costs of life, were still being financially supported by their parents at an alarming rate. A study conducted in 2007 found that the migration rate of highly educated Israelis to the United States was among the highest of 28 countries examined – more than three times the average. The trend continues: according to this report from i24 News, as of 2022, academics had the highest rate of emigration from Israel at 7.8 percent, followed by physicians at a rate of 6.5 percent. Numerous people I have talked to lately, including folks of serious caliber and international renown, are still looking for the way out.

In other words, I suspect that the growing isolation of Israeli academia and academics abroad is an unmitigated problem, which does not harbor an opportunity to reverse the brain drain. Many of us feel patriotic sentiments, which are bolstered by the ugliness we experience from our surroundings. I don’t mean to belittle that. But we also have a responsibility to our families, and we also understand that living under this government in the aftermath of this horror–if there will ever be an aftermath–is not sustainable. Colleagues working in Europe in the 1930s felt the creeping limitations, followed by expulsions, that we feel; but the alternative they had was to flee to America, whereas our alternative would be to flee–where exactly? One of Ehud Manor’s most beloved songs, written about the War of Attrition (in which my father was injured), is called “I don’t have another country.” For those of us living in diaspora, I don’t feel like we have any country.

What We Learned and Didn’t Learn from the House Education Committee Hearing on Campus Climate

Yesterday (Tue), the House Education Committee summoned the Presidents of Harvard, Penn and MIT to a hearing pertaining to antisemitism on their campuses. “Hearing” is a more apt term than “listening,” because none of the latter took place. The Washington Post has a transcript of some of the conversation, which you can read to form your own impressions.

I think it’s obvious from the transcripts that the responses are pathetically vague and circular. The presidents attempt to yammer about free speech when confronted with issues pertaining to real harm to the students and are utterly unable to offer guarantees that might reassure parents that their students are not at risk of being assaulted and threatened. I hardly think anyone can seriously waffle around the fact that Jews and Israelis are experiencing acute anguish on university campuses, and the sorry excuses offered are an abdication of responsibility. Free speech is not the ultimate defense to all this, because much of what has occurred–threats, assaults, exclusions, restrictive policies, loyalty oath demands, etc.,–goes far beyond the question of government restrictions on speech. It also goes, at least in the case of these private institutions, to the question of monetary institutional support (which is also “speech”) and to the question of university presidents’ failure to condemn hateful rhetoric (which would also be a use of free speech.) At the same time, anyone looking for real, substantial answers for this problem would not find them at the committee hearing.because it was run like an inquisition rather than an effort to learn and educate.

If I were running the hearing and were truly interested in learning more about why campus climate in the Ivies and elsewhere is so noxious, here is what I would want to know: How are the mental health and support services on campus structured, and when do they address community issues rather than just personal challenges? How are decisions about funding research and teaching centers made, particularly the ones with stances and interests on the Israeli-Palestinian conflict? How are student clubs established, and under which conditions do they receive funding from the school? Notwithstanding academic freedom, do faculty receive any training about what is and is not legitimate grounds to end class (e.g., to participate in a partisan protest but perhaps not for a counterprotest)? Are there guidelines and regulations about circumstances that merit all-campus addresses and emails from university leadership? from school deans? from department chairs? If there are, do they apply equally to all political standpoints? Do presidents and chancellors comment freely on world events whether or not they are related to campus life? When protests happen on campus, who approves them, and what is the process? Is campus police involved, and to what extent? Does campus police liaise with the municipal police department in these situations? If a student is assaulted, or falls victim to some other hate crime, who investigates the complaint?

Piecing together the picture of campus climate is a complicated, multi-factor endeavor. And Elise Stefanik didn’t do it, not because she couldn’t, but because she didn’t want to. Generally speaking, running a hearing like this in the style of a cross examination does not reflect an intent to receive in-depth answers to difficult questions; in this case, I speculate that it was designed to supply sound bites of academics looking like clowns for the Trump 2024 campaign.

Brandeis Center Sues UC Berkeley for Antisemitic Discrimination

Yesterday, while on business on the UC Berkeley/GTU side of the bridge, I ran into a colleague who offhandedly mentioned that the Brandeis Center was suing the university for its antisemitism. I swiftly got hold of a copy of the complaint, which you can find here in its entirety:

Brandeis Center Complaint 1… by hadaraviram

Let’s parse out what is going on here.

Much of the complaint walks well-trodden paths I know merely from being a Jewish-Israeli-American academic on both sides of the bridge. Yes, yes, yes, yes, being Jewish, and especially Israeli, on American campuses these days is like swimming through a river of shit. But experiencing distress, ugliness, and hostility in itself is not ground for legal relief. Moreover, expressed opinions, odious as they may be to the listener (and even when expressed in an odious manner), are protected under the First Amendment. So, what is the legal argument being made?

Brandeis’ argument is more or less the following: Beyond the hostile work environment experienced by Jewish students, various law school student clubs (whose activities, notably, are unrelated to Israel/Palestine) have required that their members, if Jewish, (1) disavow Zionism or (2) attend a “Palestine 101” class in which they are told Israel has no right to exist. It looks like the law school clubs are trying to skirt around limitations pertaining to religious discrimination by allowing Jews to join, but only what they consider to be the right kind of Jews: anti-Zionist ones. These limitations extend not only to the students, but also to speakers and to people hoping to publish articles in some of Berkeleys’ law journals. These loyalty oath requirements and reeducation camps preceded the current crisis by at least a couple of years. I vividly remember giving a talk about FESTER at Berkeley’s Center for the Study of Law and Society a couple of years ago. The talk, which had nothing to do with Israel or Judaism, was advertised on Twitter by Berkeley’s media team, and some of the commenters replied by tweeting, “but will the students let them speak?” I didn’t encounter any problem that day, but to be fair, I was there by invitation of my colleagues to speak to colleagues, and student clubs were not involved. Because I would never agree to loyalty oaths or gulags, I imagine that some student clubs (including those concerned with prisons or healthcare) would not invite me to speak there, and I also imagine that it’s not worth my time and effort to send papers to any UC Berkeley journals, because they will not be judged on the merits (for those of you scratching your heads, the law review publication market is insane; not only is the article selection not anonymous, but people actually submit their CVs alongside their articles. This explains the bizarre incident a few years ago, in which some student in a law school that shall remain anonymous asked me to omit my military service from my CV so that he’d be able to persuade his fellow student editors to publish the piece. So none of this surprises me in the least.)

[As an aside: Even though most of the stench wafting from this lawsuit emanates specifically from Berkeley Law, Erwin Chemerinsky or the law school are not being sued, and neither are the particular student orgs, which I find curious. I would love to know why, though I suspect it has to do with Chemerinsky’s recent op-ed expressing his dismay about virulent antisemitism and/or with the expectation of having responsible adults as adversaries.]

Berkeley’s counterargument, I imagine, will go something like this: none of the student club behavior, and none of the university’s tacit or explicit endorsement of these rules and exclusions, is antisemitic, because none of it bars Jews from participation. It only bars people who are openly Zionist. And here’s where things might get interesting.

In 2010, the Supreme Court decided Christian Legal Society v. Martinez. The respondent is my colleague Leo Martinez, who was Acting Dean at UC Law SF (formerly Hastings) at the time. The plaintiff was an off-shoot of CLS-National, an association of Christian lawyers and law students, which charters student chapters at law schools throughout the country. Like Berkeley, UC Law SF is a public school with nondiscrimination rules in its charter, and subject to the Bill of Rights. Under this nondiscrimination regime, UC Law SF had an “all-comers” policy for its student orgs: they must be open to participation of all students. CLS, however, required that all its charters adopt bylaws requiring members and officers to sign a “Statement of Faith” and to conduct their lives in accord with prescribed principles. Among the tenets that prospective members had to commit to was the belief that sexual activity should not occur outside of marriage between a man and a woman; CLS interpreted its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct.” CLS also excluded students who hold religious convictions different from those in the Statement of Faith. In light of these requirements, UC Law SF refused to approve CLS as a registered student organization (RSO), which denied CLS access to university funding.

The Supreme Court ruled against CLS (which led to much rejoicing at the next faculty meeting, as you can imagine.) Justice Ginsburg, who wrote the majority opinion, found the “all-comers” policy reasonable, and the balance struck with CLS (they can host events as an outside entity–just not allowed to receive money from the school) constitutionally proper.

The situation with the Brandeis lawsuit is a bit different, because it comes from the opposite side: a complaint from students who cannot access these organizations and opportunities. Since Berkeley, like UC Law SF, has an “all-comers” policy, it looks like whether or not these clubs have run afoul of it depends on whether you accept Brandeis’ premise that “Zionism is an Integral Component of Jewish Identity.” At least for some Jewish UC Berkeley students (as recent events have obviously proven), this is not true–one might even say that anti-Zionism is an integral component of whatever identity they have, Jewish or otherwise. In an interview to the Jewish News of Northern California, Dean Chemerinsky estimated that “to say anyone who supports the existence of the State of Israel–that’s what you define as Zionism–shouldn’t speak would exclude about, I don’t know, at least 90 percent of our Jewish students,” though more recent events might suggest otherwise. I don’t know, and neither does anyone at Berkeley, because no one has done a survey, and moreover, in all the disputes about who is and is not a Zionist, one is often hard-pressed to find a solid definition of Zionism (or even any rudimentary education on the subject.) The question remains: Is Zionism “an integral component of Jewish identity?” And it it is to some but not to others, is it to be regarded as religious discrimination if, for Jewish Zionists, it is?

Let’s take a look again at the CLS policy from CLS v. Martinez. Notice that, at no point, did CLS deny membership to gay or lesbian members. Presumably, if you are homosexual and keep your homosexuality to yourself, CLS would welcome you. Or, if you’re riddled with shame about your desires and attractions and your homosexual conduct is “repentant,” you should be fine. I think the point of the analysis is that CLS cannot claim to be inclusive of gay people if it is only inclusive of those of them who remain in the closet and are guilty and conflicted about who they are and who they are attracted to (do some people love sad queers in the same way that others love dead Jews?). But is being Zionist, for Jews, the same as being “out and proud” for gay people? This requires a lot of intricate, hairsplitting attention to the components of each identity.

Assume, for example, that CLS had allowed any and all openly gay people to join its ranks, but only if they (1) disavowed support for same-sex marriage (not every gay person supports gay marriage, some for assorted anti-heteronormative reasons) or (2) attended “family values 101” that would teach them that children with same-sex parents are miserable and deprived. Would that pass muster with the Supreme Court? I don’t think so, but if it would, then we need to ask ourselves whether supporting the State of Israel’s right to exist is more of an “integral part” of being Jewish than supporting same-sex marriage is an “integral part” of being gay.

This brings up lots of complicated questions about the relationship of different Jewish denominations, throughout history, with the aspiration to return to Israel. One documented issue that was repeatedly brought up in debates about Jewish emancipation in Europe had to do with the Jews’ “dual loyalty,” to the emancipating country and to their ancestral land. For this reason, when the newly established Reform strain formed their credo and ethos upon inaugurating the Hamburg Temple, they excised from the liturgy not only the Hebrew language, but aspirations to return to Israel and any messianic content. To their Orthodox detractors, that was tantamount to rejecting an “integral component of Jewish identity.” But to the assimilation-hungry Reform congregants, it was nothing of the sort: it was the fashioning of a new, modern Jewish identity that they could live with and feel well integrated with their surroundings. In other words, what is and is not an “integral component of Jewish identity” means different things to different people in different times and places. There are even diasporist critiques of the centrality of Israel to Jewish life, though as Julie Copper points out in this interesting article, they tend to “prove wanting because they contest Zionism on the terrain of Jewish identity” as opposed to “envision[ing] Jewish political solidarity beyond the confines of the nation-state.”

But if we were to envision such solidarity, what exactly would it consist of, except agreeing that living on American campuses right now downright sucks? If, as various organizations like Bend the Arc or Tru’ah argue, our consensus should form around issues of progressivism and tikkun olam and all that jazz, why does it feel like engaging in these advocacies proves a hollow hope from Jews as it produces exactly the opposite of political solidarity? If you take Israel out of the equation, in other words, what is left (pun intended)?

Finally, in the last couple of months I’ve noticed that American Jews and American Israelis experience the issue of Zionism and anti-Zionism in very different ways. Obviously, when people express academic fascination (theoretically or not) with the scintillating question whether or not you and your loved ones have a right to exist, they shouldn’t be all that surprised to find you an unenthusiastic intellectual partner for that exercise, and you’re not likely to enjoy the debate. In 2018, Bret Stephens wrote precisely that:

All this is to say that Israelis experience anti-Zionism in a different way than, say, readers of The New York Review of Books: not as a bold sally in the world of ideas, but as a looming menace to their earthly existence, held at bay only through force of arms. It’s somewhat like the difference between discussing the effects of Marxism-Leninism in an undergraduate seminar at Reed College, circa 2018 — and experiencing them at closer range in West Berlin, circa 1961.

Which raises another cluster of questions: If, as Berkeley will likely claim, Zionism is not an integral part of one’s Jewish identity, is it an integral part of one’s Israeli identity? If the student club policy cannot be classified as religious discrimination, is it discrimination on the basis of nationality? Is it possible to surgically separate one’s belief that one’s country has a right to exist from being a citizen of that country? And, given that, under the Law of Return, every Jew has a right to return to Israel, the Jewish nation state, is every Jew being discriminated against (on the basis of putative nationality)?

I look forward to seeing how this lawsuit evolves and will post more as developments unfold.

Offensive Speech in Terrible Times

Like many other campuses around the United States, mine is papered with despicable flyers espousing an ignorant perspective on the Israel-Hamas war. My Jewish students are understandably upset and infuriated, and so am I. Every day brings fresh, unbearable details about the massacre. The contrast between that and my outside surroundings is a dissonance that fractures me to the core. In the coming days, many campuses, including ours, will see abominable displays of hatred, antisemitism, and a breathtaking level of illiteracy regarding international affairs. We’ll see laughable, imaginary coalitions between, say, Hamas and the fight for trans rights. This will be ugly and it will be emotionally difficult to stomach. It already has been a difficult struggle to function at work and it’s likely to endure for some time.

At such times, supporting a legal regime that has absolute free speech is deeply distressing and challenging. I finally found out who first wrote, “I detest what you write, but I would give my life to make it possible for you to continue to write”–it was Voltaire biographer Evelyn Beatrice Hall, in 1906. For First Amendment enthusiasts, this era epitomizes that sentiment–the price of freedom is walking around with a broken heart, even if the open goal of the speakers is to break it.

The image above depicts the Illinois Holocaust Museum in Skokie, IL; in the 1970s, Skokie was the setting for a free speech debate culminating in a Supreme Court decision that in many ways reminds me of the situation on the ground today. David Goldberger, at the time the legal director of the ACLU of Illinois (and later an Ohio State law professor specializing in free speech) has written a fascinating account, complete with images, of his representation of the Nazis in this case–not only what it was like to have them for clients, but also the public response. I really recommend that you read it verbatim. Among many things I didn’t know was the fact that Meir Kahane, in many ways the ideological granddaddy of murderous Jewish nationalists like Ben Gvir et al., started his activity in the US with the Jewish Defense League, who appeared at the ACLU offices with baseball bats! Another thing I didn’t know was that the ACLU’s choice to represent the Nazis in the Skokie trial led to tens of thousands of resignations, but also to some support letters from holocaust survivors who said that “they wanted to be able to see their enemies in plain sight so they would know who they were.” The ACLU is taking the same approach regarding the protests we are experiencing now.

I really recommend reading Goldberger’s entire account, and it’s even more interesting to ponder it through a comparative lens. Not all countries have absolute free speech; many place limitations on hate speech and incitement to racism or violence. That approach ushers its own host of problems: what is and is not “hate speech” or “incitement” is a subjective determination, and judicially delving into these questions inevitably brings in ideological perspectives and heuristics. I’m already seeing some troubling incidents in Israel in which universities and schools waste precious time and energy on McCarthyist investigations of their students, faculty, and staff.

It’s important to distinguish the general question of what should and should not be legally allowed from the more particular question, what these opinions tell us about the quality of the education we provide and about the quality of the people who espouse them. For some idea on how these ideas fester and infect people to this degree, read Julia Steinberg’s account of her own education. It exposes many of the flaws of what passes nowadays for progressive education, and dovetails with my unwillingness to responsibly participate in similar indoctrination efforts at my workplace and elsewhere. Steinberg’s piece was an important reminder that hateful idiots don’t spring into being, fully formed, in college or law school; they are raised to be the way they are in their K-12 years. I, for one, plan to keep a very watchful eye on my child’s education, to ensure that essentialist, separatist identitarian rubbish isn’t inflicted on the kids in this mindless manner.

It is also important to distinguish the right to free speech from the consequences of putting oneself out in public espousing horrendous views. Several law students in fancy schools are finding out, to their shock and surprise, that law firms are not all that keen to hire people who publicly extol the virtues of slaughtering, raping, maiming, burning alive, beheading, and kidnapping people. That being an antisemitic idiot with repugnant views is not a professional asset and has consequences in the job market shouldn’t be particularly surprising, unless you spent your undergraduate years under the tutelage of morally bankrupt people for whom espousing these “edgy” and “interesting” views was a calculated career strategy that catapulted them to prominence in fields like ethnic studies (read here a courageous letter by a UC Regent calling out the Ethnic Studies faculty council letter for what it is.) No wonder these students think they can spew horrid opinions in public and face no consequences whatsoever. What I find most amazing about the whole thing is that some of my colleagues are surprised by what they see on the campus quad. How is any of this surprising? Academic institutions, including the ones I work for, have breathed life into this Golem for years, and the last thing they should find astonishing is when it comes for them. They taught these people, but they didn’t educate them, and the proof’s in the rancid pudding.

“Apolitical” Judicial Selection in Israel? Lots of Moving Parts

A few days ago I drew your attention to the upcoming election to the Israel Bar and, particularly, to the thoroughly corrupt candidate who had sex with women in exchange for guaranteeing their appointment to the judiciary. The crippling shame of having someone like that at the top of the administration’s licensing profession in itself should be enough for lawyers of all political stripes to vote him out. But yesterday I had an opportunity to think about the wider political ramifications of this election, when former politician Ophir Pines-Paz spoke at the democracy protest in Kiriat Tivon.

My parents were both deeply involved in the struggle for democracy and against corruption in Israel, opposing the occupation, religious coercion, social and financial inequalities, and the crimes and excesses of Netanyahu, his family members, and his government. During Netanyahu’s previous government, they protested weekly in front of his house. When this horrendous government took office, my parents faithfully reported to the protests each week. Sometimes, my dad would protest mid-week at an intersection, waving his big flag in hand. Today I felt called to take his place, as his kind, hugging, righteous arm let go of his flag for the last time last week. I took my dad’s flag and went to the protest, alongside a dear friend and thousands of attendees (the above picture does not do justice to the amazing sights and sounds.)

Anyway, as Pines spoke to the protesters and explained the importance of the bar election, I realized that the Israeli system might be opaque to English-reading audiences, and the scandalous possibilities of this election are too complicated, perhaps, for the American press to pick up. So here’s your primer:

Israel does not hold judicial elections, as in U.S. states, nor does it hold purely political hearings by the legislature for its Supreme Court Justices as in the U.S. federal system. All judges in Israel are appointed by the President of Israel following the recommendation of a special committee, whose current structure, by law, is this:

The committee is designed to have an ostensibly professional majority: five lawyer/judge members and four politicians. Also, by custom, one of the elected Knesset Members is from the coalition and one from the opposition.

The proposed governmental “reform” would change the committee’s composition to look as follows:

Under this proposal, the committee would have eleven members, and judicial elections can be decided by a seven-member majority. In other words, if seven coalition members vote for a judge for political reasons, the sole opposition member and three judges cannot block them.

Thanks to dogged, relentless protests nationwide, the proposal has not passed yet. But the struggle to politicize the judiciary to guarantee that it favors the government continues on a variety of fronts. Two days ago, the government attempted to elect two coalition members (as opposed to one coalition member and one opposition member) to the committee. The vote was secret, and despite their efforts to drag things on and on and recount the votes for hours on end (how long does it take to electronically count 120 votes?) the Knesset elected only one member – KM Karin Elharar from the opposition. This means that at least four members of the coalition are secretly disgusted with Netanyahu and his governmental partners, though not brave enough to come out in opposition to their noxious plans.

What these noxious plans amount to is sitting government loyalists, ready to disenfranchise minorities, intensify the horrors of the occupation, and give free rein to the religious authority, in the Supreme Court, and more specifically, to block the appointment of a quiet, professional, independent judge by the name of Itzhak Amit to the Supreme Court. The coalition demonizes Amit and paints him as a post-Zionist demon. But in fact, he is widely respected as an excellent, hardworking, unassuming judge, and his sole sin apparently is that he decides cases based on the legal arguments, rather than by politics.

Can they do it? Let’s do the math:

With Elharar on the committee, and the three Supreme Court Justices presumably in favor of a strong, independent constitutional court, we have four votes for Amit and other independent judges. On the other side we have the two government ministers and the yet-to-be-elected coalition Knesset Member. The two votes up for grabs are those of the lawyers. Do you now understand why the government is so keen to seat Effie Naveh as the Israel Bar Chairperson? According to a recent exposé, Naveh’s campaign donors did so with the understanding that he will, in exchange, finagle a seat at the judicial election committee for them.

Now, Naveh has been consistently denying that he is beholden to the architects of the judicial reform. These vehement protestations are not particularly credible, given the efforts that the government is making to get him elected. But the bottom line is that Naveh’s personal or political opinions do not matter at all. He has been publicly exposed, and criminally convicted, as an unprincipled man, whose massive bribery and fraud operations are conducted to enrich him and his friends and to sexually gratify him. Is this the sort of person this government can do business with, as far as judicial appointments are concerned? You bet.

One of the challenges of the anti-government protests is that the insidious attack against the country’s democratic regime takes place on multiple fronts, including those hidden from sight. I hope this post shows how tinkering with each moving part of the judicial selection process can have vast consequences for democracy, and encourages those of you with an active Israel Bar membership to vote on Tuesday–and those of you with lawyer friends to encourage your buddies to vote Naveh out of office.