It’s been a few weeks since I started providing pro bono legal services to professors and students confronted with antisemitic bigotries at their universities and colleges, and a few months since I started providing ersatz advice to people emailing me about their campuses. What I’ve seen so far is a paraphrase of Tolstoy’s Anna Karenina opening: each unhappy academic situation is unhappy in its own special way. The experience at a gigantic R1 university in the Midwest might be different than the experience at a tiny college town on the East Coast, and the experience of STEM researchers might be different than one of people in the arts and humanities. I’m already at a place where I can see some similarities, though, and it’s time to offer a few things to consider.
What Is Your End Goal? Any person wants to feel safe, welcome, and valued at their workplace. Unfortunately, a big part of this desired outcome cannot be obtained through legal measures. It might be useful, as an exercise, to ask yourself what concrete things about your campus experience you would like to see improve. For example, were talks and events on campus violently disrupted? One thing to do would be to reinvite the speakers and compensate student groups for losses incurred at these events. Were violent incidents left uninvestigated? You might want them to be looked at more seriously. Are there any areas of campus that are barricaded or otherwise impermeable to students and faculty? You can ask for free passage throughout campus. Are people being compensated, in terms of promotion and advancement, for espousing views that are congruent with those of the violent protestors, or penalized for expressing dissenting opinions? Perhaps the faculty handbook needs updating about promotion standards. These are all concrete things that can improve campus climate. By contrast to this stuff, as I’ve said to several people, expecting symbolic groveling from the administration or insincere apologies from individuals who do not feel apologetic at all is a losing premise that creates rancor and does nothing for you in the real world. Some remedies are debatable: I know folks who have more faith than me in the premise of including antisemitism literacy, or viewpoint diversity issues, in the campus DEI package. Only you know whether, on your campus, this would be meaningless pageantry or a pathway to lasting change.
One Big Incident versus Lots of Little Ones. If you’ve been blatantly discriminated against in a provable way, this one incident could be all you need for litigation. But in a lot of the cases I see, people go through weeks in which nothing that happens around them is beyond the pale, and everything complies with the broad understanding of First Amendment principles. You could walk through a gauntlet of horrid flyers and booths, see advertisements for events in which lies and incitement to hate will be proclaimed, get the stink-eye from people who used to be your colleagues or even friends, spy some ugly social media content from people you sometimes get coffee with at conferences, and get a couple of meanspirited student evals. Any of these things on its own might not brighten your day–might even blemish it–but grownups know that adult professional lives are not a bed of roses and Mama said there’d be days like this. Whether or not in the aggregate we’ve hit the mark of an abusive work environment is a big question, and the answers could depend on the disposition and worldview of the individual judge. Which brings us to the question: How ardently do you want to fight this?
Fighting a Legal Battle Has Pros and Cons. If you’re facing some sort of disciplinary procedure, like a Title XI complaint or something similar, you really have no recourse but to fight back with everything you’ve got. But if you’re the one initiating the escalation, such as if you want to start building a Title VII case based on your work environment, you have to make a choice: how much are you willing to take, psychologically and practically, to obtain evidence for your case? I’ve now heard of cases in which people were so harangued and mistreated at faculty meetings that they stopped showing up. Attending a meeting where you are derided and berated can be the source of a lot of misery and isolation, and it’s understandable that not everyone has the stomach to withstand prolonged exposure to abuse. But you cannot trust a record of a meeting you have not attended in person, certainly not if the meeting hasn’t been recorded or transcribed. Bigoted remarks and slurs will likely not find their way to the record, and if you haven’t heard them with your own ears, they are not always provable. Relying on second-hand rumors is also risky in the sense that the people who experienced the event might be paraphrasing, or exaggerating, or telling you their interpretation rather than the naked facts. Moreover, even the best employment or civil rights lawyer cannot do this for you. They don’t know your campus, they don’t understand the relationships and the people involved, the long histories of campus issues will not make as much sense to them as they do to you. Also, in my experience, many lawyers are unfamiliar with the highs and lows of academic careers, and thus might not understand that there’s a whole banquet of consequences ranging from “nothing” to “being fired,” and that, as an academic, you could be paid a full salary and still be treated like a leper on campus. All of which is to say: if you want documentation, you have to commit to collecting it yourself, and that calls for fortitude and tolerance that not everyone has 100% of the time. You are the best judge as to whether the benefit is worth the psychological cost.
What Is and Is Not a Bigoted Remark. Bigotries and hatreds tend to be expressed in broad, vague brush strokes, and sometimes rely on words that can have a derogatory cultural resonance for some people but sound completely innocuous to others. This is true of many hatreds on the basis of race, gender, national origin, ethnicity, religion, you name it, and it is especially true of antisemitism which, kind of like a virus, tends to mutate and express itself differently across time and place. If one is a researcher in the social sciences or humanities, and has studied the intricacies of dogwhistle utterances and their cultural underbellies, one would read a lot of offense and derision into the use of certain words, but might be surprised that lawyers and judges who do not share these linguistic sensitivities are not in a hurry to adopt this understanding. E.g., oblique references to greed, friends in high places, crassness, etc., which might ring in your ears as antisemitic, might not read the same way to people without your attention to hermeneutics and familiarity with the history of antisemitism. In these cases, careful documentation of the context surrounding the utterance might be useful.
Keeping Solid Records. If you want to fight this fight, make it a habit to write down detailed memos, as accurately as you can, shortly after the events or conversations take place. I’m a fairly experienced ethnographer, and I’ve learned from years of fieldwork that, even if you think to yourself, “I’ll never forget what this interviewee said,” you will, unless you record it immediately. If some comment or encounter has shaken you up, sit at a café or at your office or at home and write down the facts: who said what.
Ask for Clarifications. Unclear as to why something has happened to you? Rather than stew in your own interpretations, ask as straightforwardly as possible. If you’re getting some poor review, or bad news about a promotion, ask what the criteria were. Use neutral language: “I would like to know where I fell short, so that I can be more competitive at this [x thing] in the future.” Accusing people of bigotry in these scenarios rarely goes over well, and risks that they will clam up, denying you invaluable information you can accurately record, compare to the academic regs, and invoke next time it comes around. When confronted with vague accusations about conduct in class, a-la “we felt unsafe,” it is especially important to ask dry, informative questions to figure out what the facts were.
Facts Are Not Opinions. Opinions Are Not Facts. If a colleague or student claims that you said X or did Y and you did not, their claim is false. But if they say that you are an idiot, or that they dislike you, they do have a right to their opinion, even if it’s an ugly, bigoted opinion (as an aside: attacking people for having an unfavorable opinion of you, or asking for intervention from the administration, casts you in the role of a petulant child and is unlikely to produce tangible improvement.) The problem with subjective opinions begins when people in power assume that they are objective referenda on a person for raises, promotions, etc. In other words, if an administrator denies you promotion on the basis of murmurs from people who dislike you, rather than on the basis of your proven record of scholarship, pedagogy, and service, that’s when we do have a legal problem.
Did Nothing Wrong? Do Not Apologize. Something I’ve now seen a few times is an instructor confronted with some vague accusation made by anonymous students and asked for a comment. If you’ve done nothing wrong and have nothing to apologize for, say: “I have done nothing wrong and have nothing to apologize for.” Rehearse this if you need to – it is a basic act of self-preservation. Non-apology apologies, or insincere or incomplete apologies, are more likely to be twisted against you and misused in proceedings. Not apologizing when you are innocent also preserves your own sanity, because in the face of outlandish accusations, even people with a solid moral fiber and strong character can begin to doubt the facts (I see a parallel of this in the world of false accusations and confessions in criminal cases.) Of course, if you *did* do something wrong, the buck stops with you, and you should apologize and do better in the future.
Stay Lawful with Recording. One way to keep accurate records of conversations about advancement and work conditions is to surreptitiously record them on your phone, but depending on where you live or work, that might be illegal. In many states, recording a conversation requires the consent of both parties, and if you surreptitiously record, you are committing a misdemeanor. Find out whether your state has an all-party consent law here and keep to the limitations of the law. Needless to say, do not ever lie, falsify, forge, use creative AI, or whatever, to present evidence that is not true.
At the Same Time, Assume Others Are Recording. At my home institution, the default is that every classroom is audio recorded, and we have signs alerting our campus population to this fact. Some people bristle about this and talk about academic freedom and stifling surveillance, but I think it’s excellent policy. To paraphrase James Comey: Lordy, I’m glad there are tapes! If you have a similar rule and find yourself accused based on a surreptitious recording a student made in class, you now have some control over whether the recording was edited or manipulated to twist the narrative. Most institutions do not record as a matter of course, but I recommend that everyone in higher education behave as if they did. In other words: Assume that everything you say outside of your own home, and within earshot of anyone who is not a member of your immediate family, is being said in public. If whoever heard you is quoting you faithfully and you truly are at fault for something, the buck stops with you. If they twist it, lie about it, or choose to interpret it in vile ways, the buck stops with them, and you should fight them every inch of the way.
Lateral Moves: Pros and Cons. Some folks are pretty exasperated with the administration and environment where they are and looking for a lateral move, which is understandable. If you have a sense that there are no responsible adults around you who understand the difference between free speech and terror and who protect you from discrimination and abuse, look for a place that seems healthier in that regard. But consider that, especially if you’ve been somewhere for a considerable period of time, you’ve earned respect that will be difficult to replicate at a new place, and institutional reactions to, say, a swastika or a trashed mezuzah on your office door might vary based on how much personal cache you’ve accrued at your workplace. If you do decide that your workplace is not salvageable, please exercise due diligence about any prospective workplace. Ask the people who work there, honestly and sincerely, whether they feel comfortable and welcome on campus. Look up bigotry incidents online and get a sense of whether there are isolated incidents (no university is perfect) or part of a pattern. Also, consider what effect your staying or going might have on a spouse who is also employed at the university, or on your kids.
Consider Whether You Want to Buy Into the Victim Game. There are two main paradigms through which one can see experiences of discrimination and abuse: looking for recognition of oppression and victimization, and looking for pride and celebration of one’s identity. There is a lot in the college environment that pressures in the direction of the former, and I suggest balancing it out with the latter. Extend kindnesses to students while also encouraging them to be proactive and resilient about the situation. Respectfully and patiently argue with people who lack good information or profess to know things they don’t. One of the most powerful examples of this approach is the wonderful Holocaust museum in Skokie, which I recently visited. After the town residents, many of whom were Holocaust survivors, lost their Supreme Court case against the Nazi march, they realized that they, too, have freedom of speech, and inaugurated an educational enterprise like none other. The museum includes an amazing exhibit in which the audience can directly interact with holocaust survivors who were recorded and made into holograms, and hear their life story from their own mouths. At the end of the experience, there are pictures of the survivors who narrate the museum exhibits, and the words, “I did not tell you this to weaken you, but to strengthen you.”
Come Together. Are you the only person who is being mistreated, or do you have colleagues that experience the same thing? Rather than isolating yourselves, come together and talk about this. If there are several of you in the department, take turns attending meetings and taking notes. If there’s a university Hillel or other affinity group or institution that could be helpful, liaise with them. In some places, there’s a regional Hillel office that serves several institutions, and you can reach out and make friends at other institutions (which is always a bonus.) Additionally, a pattern of discrimination that targets people of the same racial, ethnic, and/or religious group, reduces the odds that mistreatment will be dismissed as a consequence of one particular, oversensitive personality. It also offers the benefit of celebrating your heritage and culture with others, which is so important when times are tough. And, talking through this stuff with other people can help you collectively figure out what you want to get out of this and whether legal action is the way to get there.
