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David E. Weisberg
David E. Weisberg

The Unholy Mess at Duke

A controversy currently swirling at Duke University in North Carolina cuts against most of our preconceived notions about free speech and antisemitism on today’s college campuses. We’ve seen situations where critics of Israel use language that could be deemed antisemitic, and the critics respond that, if they were to be punished for that language, the punishment would violate their First Amendment right to free speech. At Duke, those who have actually been punished for free speech are Jewish students who have defended Israel—the “flip side” of the typical case. And that raises the question whether, in addition to being punished for exercising their free speech rights, the Duke students are also being discriminated against because they are Jewish.

Here are the facts. Duke funds the Duke Student Government (DSG), which distributes those funds to student groups officially recognized by DSG. A Duke student group called Students Supporting Israel (SSI), most of whose members are Jewish, applied for official recognition. The application was granted by DSG’s senate last November 10.

Two days later, a Duke student tweeted a link to a news story reporting SSI’s recognition. She captioned her tweet: “My school promotes settler colonialism.”  Within hours, SSI posted an Instagram response. That response said, in part: “[P]lease allow us to educate you on what ‘settler colonialism’ actually is and why Israel does not fall under this category whatsoever.” The tweeting student later said that SSI’s response was “hostile” and “made [her] feel unsafe[.]”

On November 15, DSG’s president unilaterally vetoed recognition of SSI. She explained that SSI had “singled out an individual student … in a way that was unacceptable … and appeared antithetical to the group’s stated mission to be welcoming and inclusive to all Duke students[.]”  She also stated: “[A]ny group exhibiting similar conduct would be handled in the same manner[.]”  The DSG senate sustained the veto on November 17. The president pro tempore of the senate said: “[T]he decision was based on the action of the group and not based on any ideology for which the group stands for.”

A week later, Duke’s president and provost jointly issued a statement asserting that DSG’s decision to revoke SSI’s recognition was under review, because it “raised concerns” about a possible violation of “university policy that prohibits discrimination and harassment based upon national origin and religion, which includes anti-Semitism.”

Duke ought to be sensitive to antisemitism. In 2019, the Duke’s Middle East department participated in a conference titled “Conflict over Gaza.” A complaint was made to the U.S. Department of Education that the conference had included offensive and antisemitic material. The Department had jurisdiction because Duke receives federal funding and, under Title VI of the Civil Rights Act of 1964, schools receiving such funding are prohibited from discriminating on the basis of national origin. The Department characterizes antisemitism as a form of national origin discrimination.

Duke resolved the 2019 complaint by entering into a legally binding Resolution Agreement, in which Duke committed to amend its anti-discrimination policy to explicitly address antisemitism, and also agreed to ensure that: “All actions undertaken pursuant to this Agreement are consistent with principles of free speech and expression protected by the First Amendment of the U.S. Constitution.”

DSG’s revocation of SSI’s official recognition, which indisputably punished SSI for its response to the “My school promotes settler colonialism” tweet, violated Duke’s own anti-discrimination policy, which states: “[T]he University’s principles of academic freedom … and the related freedom of expression include, but are not limited to, the civil expression of ideas[.]”  Duke’s policy on Pickets, Protests, and Demonstrations provides that all members of the Duke community have the right “to explore and to discuss questions which interest them[.]”  And DSG’s own constitution was violated, because it states: “[DSG] shall not abridge the freedom of speech, the press, petition, or peaceable assembly or protest.” (Article IX.)

The revocation also undeniably violated the First Amendment, with which, pursuant to the Resolution Agreement, Duke must comply. None of the recognized exceptions to protected speech—defamation, true threats to commit a crime, so-called “fighting words,” obscenity, child pornography, and misleading commercial advertising—conceivably apply to the interchange between SSI and the tweeting student.

(And it should be noted that antisemitic speech also does not fall within any of the recognized free-speech exceptions. So, those who contend that criticism of Israel which amounts to antisemitism is nevertheless protected by the First Amendment are, by and large, correct. As long as no improper behavior, such as harassment or discrimination, accompanies the criticism, even antisemitic expressions are protected by the Amendment.)

DSG violated SSI’s right to free speech when it punished SSI for its very civil response to the tweeting student. But did DSG act out of an antisemitic motive?  We don’t know. DSG’s president and the president pro tempore of its senate deny any such motive. Moreover, it is painfully obvious that many Duke students have little to no understanding of free speech. They apparently believe that, if speech makes anyone “feel unsafe,” it must be punished. Perhaps it was simply that lack of understanding that caused the violation, and not any discriminatory motive.

But, from the perspective of Duke’s administration, it should be irrelevant whether DSG had an antisemitic motive in revoking recognition of SSI. That revocation, whatever its motivation, was a clear violation of SSI’s free speech rights, and the violation of Duke students’ free speech rights obviously would be sufficient justification for Duke to compel the reversal of that revocation.

The much more important question is this: If Duke permits the violation of SSI’s free speech rights to persist, will Duke itself have violated Title VI? Although students in DSG might not understand the First Amendment, Duke University must be presumed to fully understand that Amendment, which it pledged to obey in the 2019 Resolution Agreement.

Therefore, if Duke permits a blatant violation of SSI’s free speech rights to persist, any reasonable person would be compelled to conclude that Duke itself is guilty of national origin, antisemitic discrimination. That conclusion would be inescapable, because it is impossible to believe that Duke doesn’t recognize a First Amendment violation when SSI–a predominantly Jewish group of Duke students dedicated to supporting Israel–is punished for protected speech. To avoid its own violation of Title VI, Duke must promptly correct DSG’s violation of SSI’s free speech rights.

About the Author
David E. Weisberg is a semi-retired attorney and a member of the N.Y. Bar; he also has a Ph.D. in Philosophy from The University of Michigan (1971). He now lives in Cary, NC. His scholarly papers on U.S. constitutional law can be read on the Social Science Research Network at: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2523973
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