American colleges are in crisis. For the first time in decades, Columbia University has engaged in mass arrests of its own students. Rather than deterring students, its actions have predictably resulted in more protests not only at Columbia, but also at other colleges. It is easy to believe that this wave of campus protests is the immediate effect of the violence that began on October 7, but that would be mistaken. Palestine, and advocacy for Palestine, has long served as the boundary case for acceptable political advocacy in the United States. Advocates of Palestinian freedom, regularly denounced by their opponents as antisemitic, have long been the targets of campaigns of delegitimization and even demonization.
The weak institutional defense of speech on behalf of Palestinians has colloquially come to be known as “the Palestine Exception.” The Palestine Exception draws our attention to the fact that while the law might theoretically protect the right to advocate for Palestinian freedom, powerful social forces will not only punish those who do, they will also punish, and punish severely, those who do not act with sufficient alacrity to crush pro-Palestinian advocates.
Strangely, however, we continue to view these campus struggles through the narrow lens of formalistic First Amendment jurisprudence and the permissible limits of speech. Calls have been made for colleges to use their power over “time, place, and manner” to restrict protests. These restrictions are justified as necessary to “protect” either the indifferent, those who are offended by Palestine advocacy, or maybe even advocates of Palestinian freedom themselves.
The most shocking recent instance of a college’s willingness to restrict potential speech in favor of Palestinian freedom was the University of Southern California’s unprecedented decision to cancel the valedictory speech of Asna Tabassum, ostensibly for her own safety, as well as speeches by all outside speakers at its commencement ceremony.
The only way to understand the current campus struggles is as dissident students and faculty members responding to administrators’ pretextual use of formally lawful means to restrict the ability of advocates of Palestinian freedom to press their cause. One might be more inclined to believe that the concern for student safety was genuine if these policies were adopted in the wake of actual violence committed by campus activists. At the same time, college administrators have generally failed to speak with any specificity to anti-Palestinian animus that has resulted in physical attacks against Palestinian and Arab students across the United States, including the shooting of a Brown University student in Vermont that led to his paralysis from the waist down. They have preferred generic denunciations of Islamophobia. By claiming concern for student safety even as they threaten the well-being of many Muslim students who are participating in protests, administrators are acting on the invidious stereotype that Palestine advocates are violent antisemites, thereby reinforcing the very Islamophobia they are claiming to denounce.
By challenging these ostensibly neutral but substantively discriminatory “time, place, and manner” restrictions, students and faculty are doing more than claiming rights under the First Amendment; they are engaging in civil disobedience, which has played a storied role in the history of American democracy, on a mass scale. As John Rawls describes it in his Theory of Justice, civil disobedience is a “public, nonviolent, conscientious yet political act contrary to law … done with the aim of bringing about a change in the law or policies” of those in power. Combining speech with conduct, civil disobedience is addressed to “the sense of justice of the majority of the community and declares that in one’s considered opinion the principles of social cooperation among free and equal [persons] are not being respected.”
In the context of a college, our rules of social cooperation demand that disagreement be resolved by good-faith appeals to evidence and rational argument. Opponents of Palestinian freedom, however, instead of attempting to debate advocates of Palestinian freedom on the merits of their arguments, resort to the despotic power of the state and donor pressure to shut down their voices. Sadly, examples of institutional discrimination against Palestine advocacy and Palestine advocates abound. To name a few among many: Columbia University suspended its Jewish Voice for Peace and Students for Justice in Palestine chapters; the University of Pennsylvania decided to stop a showing of the documentary Israelism, even though it was produced by a group of American Jews and a Jewish student group at the university was sponsoring the event. Billionaire hedge-fund managers have taken the lead in demanding that college presidents shut down Palestine advocacy and even academic conferences centering Palestinian literature.
The obviousness with which the forces arrayed against Palestinian freedom are cheating is manifested in both the depth and breadth of student and faculty protests against college administrators’ attempts to suppress Palestine advocacy on campus. There is little doubt that the administrators know that they have adopted a course of action that betrays the college’s core mission. It is a doomed strategy: It will neither placate politicians and donors who are contemptuous of both Palestinians and the role of colleges in our public culture, nor will it deter students and faculty from challenging pretextual policies designed to suppress pro-Palestinian speech and solidarity. It can hardly be doubted, therefore, that advocates for Palestinian freedom can reasonably believe that the factual predicate for engaging in civil disobedience has been met, and we can therefore reasonably expect that campus life will remain in turmoil for so long as the current war in Gaza continues.
Administrators can rightly object that it is not their role to right every wrong. Rather, their primary responsibility is to ensure that the college can function as a site for knowledge production and teaching. Administrators might say that when campus life becomes roiled by widespread civil disobedience, as is the case today, colleges cease to function, and they are forced to act.
While American colleges obviously cannot resolve the question of Palestine, they can insist on honoring the ordinary rules of academic and associational freedom. A crucial component of these rules is the duty of administrators to remain neutral on the substance of contentious questions, such as Palestine. Accordingly, administrators must robustly defend the freedom of scholars to research, teach, and publish on Palestine, and of student groups to organize. Administrators step outside their legitimate role when they express private views on contentious issues such as Palestine, including the now ritualistic denunciation of Palestine scholarship and Palestine solidarity, as antisemitic or antisemitic adjacent. If administrators wish to contest the merits of either scholarship related to Palestine, or student organizing around Palestine, they should resign as administrators and return to their positions as members of the academic community, and join the debate on its merits. Administrators must make clear to the wider public and their own communities that they are committed to defending the college as a free space for inquiry where arguments are judged by their merits. If administrators robustly, and without exception, applied rules of academic and associational freedom neutrally, students and faculty would have no need to engage in civil disobedience. Normalcy would have a better chance of returning to campus life.
But administrators must also pay heed to the gravity of the moment: The International Court of Justice has now twice found that the case against Israel for violating the Genocide Convention is plausible. A United States district court has made similar factual findings. Israel has destroyed, in whole or in part, all institutions of higher learning in the Gaza Strip and killed scores of professors, university students, deans, and even presidents of universities. Even Palestinian universities in the West Bank have reverted to online education because of the danger students and faculty face from Israeli forces and settlers if they attempt in-person instruction. Given the gravity of these facts, it is insulting to accuse students and faculty protesting Israel’s actions of antisemitism.
American law schools, where some of the most intense controversies have erupted, have an especially important role to play. The Israel-Palestine conflict offers numerous opportunities for teaching and learning about important topics in international law, such as colonialism and self-determination, refugee law, the law of armed conflict, international humanitarian law, international human-rights law, international criminal law, the law of occupation, and the rights of the occupied to resist. American law schools also have rich experience in comparative constitutional law, which can be fruitfully deployed in understanding the Israel-Palestine conflict from a comparative perspective. Viewing the conflict as a constitutional struggle over how two peoples can live together peacefully in a small territory — rather than an incommensurate struggle of identities — is precisely the kind of legal problem that should engage American scholars of comparative constitutional law. The failure of college leaderships to create the space in which these discussions can take place safely, however, has aborted even the possibility that these necessary, if difficult, conversations will happen.
Administrators must make clear to the wider public and their own communities that they are committed to defending the college as a free space for inquiry.
The Israel-Palestine conflict raises fundamental questions about law, justice, power, and remedies to historical injustice — sometimes called “transitional justice” — for both Jews and Palestinians. Instead of competing narratives over which side deserves the mantle of superior victim, an emphasis on transitional justice would allow open and frank discussion of both Jewish and Palestinian history, while centering principles that prospectively would allow both Jews and Palestinians to live together peacefully in a land that they must share if they are to avoid committing horrific crimes against each other. Zionism, seen in its best light, is a reasonable demand for a remedy to historical injustices against Jews. Palestinian nationalism, seen in its best light, is a demand that Palestinians cannot be forced to pay the price of historical injustices against Jews by sacrificing their own rights to self-determination in their historical homeland. Negotiating these claims requires legal minds to cultivate both the professional virtue of zealous advocacy and the duty of fairness to one’s opponent. Given the seriousness, intractability, and divisiveness of the conflict, American law schools should incorporate it into their regular curricular offerings. Teaching the conflict as a legal problem would go a long way toward publicly recognizing the equal humanity of Palestinians, thereby lessening the need for civil disobedience that is roiling our campuses. More optimistically, it could contribute to the possibility of a durable and just peace.
Finally, law, unlike philosophy or history, offers a normative framework for the resolution of conflict that focuses on the relations of the parties rather than incommensurate claims of philosophical, theological, or historical truths. The culture of liberal legality turns on the use of the law to establish relations of civic friendship based on equality. American law, despite our checkered history and its enduring imperfections, has meaningful experience in promoting civic friendship in response to exclusionary politics. These skills could be productively deployed not only to produce a culture of civic friendship in American colleges, but to help imagine what civic friendship would look like in Israel/Palestine.
For this to take place, however, college administrators across the board, including deans of American law schools, will have to stop leading from behind. They will need to display steely resolve against outside forces seeking to undermine the institutional independence of American colleges. So far, they have fallen way short of the mark.