College Antidiscrimination Suits Over Anti-Israel Speech Aren't Designed to Win But to Intimidate

The campus battles over Israel may be receding from the front pages, but the lawfare campaign to suppress criticism of Israel within universities has only just begun. Most recently, a group called Students Against Antisemitism filed an antidiscrimination lawsuit against Columbia University, alleging that its tolerance for anti-Israel activities has created a hostile environment for Jewish students. This comes on the heels of nearly identical lawsuits filed against NYU, UPenn, Berkeley, and Harvard. (According to a recent analysis, at least one federal complaint or lawsuit alleging antisemitism in universities has been filed every day since October 7).

Of all the universities on this list, Columbia seemed the least likely candidate for such a suit. To state a claim under the antidiscrimination law, you have to show that a university is acting with “deliberate indifference” to widespread harassment. But Columbia’s leadership has been anything but indifferent: it has created a task force to combat antisemitism, declared that “calls for genocide” categorically violate university policy, amended their protest policies, banned events defending October 7, suspended anti-Israel groups, censored pro-Palestinian statements on departmental websites, dispatched campus security to monitor protests, and initiated disciplinary proceedings against over a dozen pro-Palestinian protestors. But that’s not enough for the litigants. As with the prior lawsuits, the Columbia action demands that all students and faculty who express antisemitic views about Israel be disciplined, expelled, or terminated.

Cynicism breeds cynicism. Cry wolf enough times and some people will either stop believing wolves exist or they’ll become indifferent to you being mauled by one.

What, then, qualifies as an antisemitic view about Israel? According to these lawsuits, “criticism” is ok, but “demonizing,” “delegitimizing,” or “applying a double standard to Israel” crosses the line. If that line seems vague and slippery, that’s the entire point: it’s no coincidence that authoritarian regimes use the same formulation. (In Russia, too, its ok to criticize the armed forces; you only get jailed for “discrediting” them.)

Wielding this expansive definition, the plaintiffs in these lawsuits argue that the following create a hostile environment for Jewish students: chanting “the occupation has got to go”; supporting the Palestinian right of return; accusing Israel of ethnic cleansing (a charge which some right-wing Israeli’s proudly embrace); calling Israel “racist” or an “apartheid state” (a view shared by Israeli human rights organizations and some in the highest echelons of the IDF); and calling last December’s House Antisemitism Hearing “a master class in bad-faith culture war bullshit” (also plenty of Jewish agreement there). Even verifiably accurate statements of fact–e.g., that Israel’s separation barrier contravened international law, and that Israel is supporting an “ongoing project of settler colonialism”–are classified as antisemitic. And the gaslighting coup de grace: it is antisemitic to screen the Jewish-made documentary, Israelism, which dares suggest that American Jews raise their kids with pro-Israel bias. (I attended two Jewish day schools where Israel was referred to as “we” whenever speaking of the Israeli-Palestinian conflict.)

To be clear, no court is going to bite: all of the above qualify as core political speech and neither antidiscrimination laws nor the First Amendment permit their regulation. But these lawsuits weren’t filed to secure judicial relief–the goal, as the litigation strategy’s mastermind admits, is to craft a narrative that gins up bad publicity, alienates donors, and intimidates faculty and students. But while these lawsuits may muffle criticism of Israel on campus, they will do nothing to dampen anti-Jewish hatred. To the contrary, the narrative they tell inadvertently fuels some of the most malignant tropes about Jews.

The first such trope is that we cosplay the victim, exaggerating our suffering for political ends. In this telling, rising antisemitism isn’t a worrying reality, but a phantom conjured by Jews to silence critics. It’s hard to imagine a better way of playing into that narrative than indiscriminately labeling virtually any criticism of Israel “viciously antisemitic” and demanding its suppression – especially when Israel’s leaders are openly making genocidal pronouncements, enabling extremist settler violence, and creating a humanitarian catastrophe in Gaza.

There’s a concept in linguistics called “semantic bleaching,” wherein a word loses its vitality through misuse and overuse. These lawsuits are bleaching the meaning out of antisemitism. Yes, they identify clear examples of antisemitism–e.g., swastikas graffitied on campus, protesters chanting “Hitler was right,” and several assaults–but the complaints are so fixated on critics of Israel, you have to hunt to find these examples.

When you dilate the definition of antisemitism to encompass all censures of Israel, you dilute the power of the antisemitism charge to mobilize people against real manifestations of anti-Jewish hatred. Add to that, when you bully people into silence in the name of “protecting Jews,” you cannot be surprised when antisemitic resentment grows. I’m being descriptive here, not normative: yes, everyone should be able to spot and condemn real antisemitism even if they’ve been cynically accused of it. But cynicism breeds cynicism. Cry wolf enough times and some people will either stop believing wolves exist or they’ll become indifferent to you being mauled by one.

Israel doesn’t represent all Jews any more than Trump represented all Americans.

This, however, is the least worrisome feature of these lawsuits. The greatest threat that Jews face isn’t psychic discomfort from anti-Israel speech–it’s that people will conflate Israel and the Jews and displace their rage at the former onto the latter. Conflation and its corollary–collective responsibility–drive the surge in anti-Jewish hate crimes every time the Israeli-Palestinian conflict flares up. Every one of these lawsuits rightfully sounds the alarm about the trope of collective responsibility. And yet, their argument that it’s unavoidably antisemitic to criticize Israel does more to bolster that trope than any vitriol-spewing campus antisemite could.

Those who argue that criticisms of Israel are “inherently antisemitic” and those who blame Jews for Israel’s actions are actually telling the same story: that Israel is an avatar for the Jewish people and that support for Israeli policy is an intrinsic feature of Judaism. Both of these positions are wrong because the underlying story is wrong. Israel doesn’t represent all Jews any more than Trump represented all Americans. Israel is a sovereign state, run by self-interested politicians who cater to their narrow domestic political base. Nor are American Jews uniformly supportive of Israel: far from it, a growing minority of Jews support the Boycott, Divest, Sanction movement, regard Israel as an “apartheid state” engaged in genocide, or denounce Zionism altogether.

It comes down to this: it is wrong to blame Jews for Israel’s actions because the Jewish people and the Jewish state are distinct things, with different interests and differing viewpoints. It is incoherent to call criticisms of Israel “inherently antisemitic” for the same reason. The fact that Jews are not uniformly supportive of nor responsible for Israel’s policies (or its existence as an ethnonationalist state) makes it possible to condemn those things without expressing any view whatsoever about Jewish people.

But once you recognize that Israel is a creature of politics, not a proxy for the Jewish people, the theory of the plaintiffs’ case crumbles. Antidiscrimination law only prohibits harassment “because of” ethnicity – it doesn’t bar politically hostile environments, nor does it permit protected groups to enlist the courts to resolve ideological civil wars. (Otherwise the flood gates would fling open: conservative white students could sue universities for permitting BLM student groups, liberal Black students could sue universities for tolerating the Federalist Society.).

It is wrong to blame Jews for Israel’s actions because the Jewish people and the Jewish state are distinct things, with different interests and differing viewpoints. It is incoherent to call criticisms of Israel “inherently antisemitic” for the same reason.

There’s no way out of this legal cul-de-sac that doesn’t involve falling back on arguments that conflate Israel and Jews. The complaints hurl limp talking points at the problem, to no avail. For example, they argue that anti-Israel activists must be antisemitic because they are “never heard to condemn, let alone rally against” other human rights offenders like Syria and China. But that kind of assumption elicits judicial eye rolls. There are myriad, valid reasons for Americans to get more exercised about Israel than Syria or China. Israel gets exponentially more coverage than Syria or China; Jerusalem is central to three major world religions and has a resonance with Americans that Damascus and Xinjiang never will; and our government condemns China and Syria but supplies Israel with military aid and bear hugs its leaders. If we coddled Bashar al-Assad like we do Netanyahu, I’d venture you’d see some campus protests.

Or the complaints allege that the universities’ selective enforcement of speech codes prove that they have it out for the Jews. Schools, the argument goes, cancel classes and disinvite speakers that ruffle progressive students’ sensibilities, but then plead free speech when the content offends Jews. But now we’re back to assuming that Jews are a homogenous mass that are uniformly offended by anti-Israel speech.

If you sew the narrative that Israel is a stand-in for Jews, you will reap a wave of people who hold Jews collectively responsible for Israel’s actions.

In fact, much of the offending content is spoken by Jews. But you’d never know that from reading the complaints, which painstakingly deny and downplay Jewish dissent on Israel. Thus, the Harvard complaint breathlessly describes how administrators allowed pro-Palestinian protestors to occupy an administrative building without consequences, but omits that the protesters were Jewish. It devotes an entire section to Harvard’s failure to discipline a lecturer who challenged students for calling Israel a “liberal Jewish democracy” (on the grounds that an ethnonationalist state cannot be a true democracy), glossing over the fact that the lecturer is a Jewish civil rights activist and the son of a rabbi. The complaints decry protests organized by the anti-Zionist group, Jewish Voice for Peace, but either ignore JVP’s role or, when forced to acknowledge its existence, dismiss it as a “fringe organization” populated by non-Jews. (In fact, it has 720,000 members, and 24 college chapters populated almost exclusively by Jews). The complaint’s motto seems to be: never let the facts get in the way of a good story.

But stories have consequences. If you sew the narrative that Israel is a stand-in for Jews, you will reap a wave of people who hold Jews collectively responsible for Israel’s actions. If you promiscuously charge all critics of Israel as antisemites, you give grist to those who think that all accounts of antisemitism are “trumped up.” And the thing is, these are the unforced errors. If a criticism of Israel is unfair, contest it on its merits. Reflexively resorting to the tired ad hominem of antisemitism only blows back on Jews.