Opinion: To combat antisemitism, start by following the law

Editor’s Note: David Schizer is dean emeritus and Harvey R. Miller Professor of Law and Economics at Columbia Law School, co-chair of Columbia University’s Task Force on Antisemitism and author of “How to Save the World in Six (Not So Easy) Steps: Bringing Out the Best in Nonprofits.”

In 26 years as a faculty member at Columbia University, I have never seen the ugly face of antisemitism expose itself as it has this year. Universities must now reckon with how hate has manifested in environments dedicated to education and the exchange of ideas. As a co-chair of the university’s task force on antisemitism, I welcomed the opportunity to share what my university has learned as one of the witnesses at Wednesday’s congressional hearing on antisemitism at Columbia.

We are making progress in reversing the antisemitic tide, but there is still more to do. Indeed, we saw the vitriol on display just last month, when anti-Zionist students hosted online an unauthorized speaker who made the outrageous statement that “there is nothing wrong with … being a fighter in Hamas.” Never mind that the US and European Union have designated Hamas a terrorist organization. Is there really “nothing wrong” with the mass rape, murder and abduction of Israeli civilians the group carried out on October 7?

There have also been direct attacks on students. In the fall, one of my students who wears a kippah told me he was approached by a fellow student who said, “F–k the Jews.” Another told me of being spat upon at a protest. A student wearing a shirt with an Israeli flag was surrounded by protesters, pinned against a wall and told to “keep f–king running” when he broke free.

Many Jewish and Israeli students have also felt unwelcome in student groups having nothing to do with the Middle East. Why should they have to disavow Zionism to be in a dance group or an affinity group for LGBTQ students? This sort of pressure – signaling that Jews are accepted only if they reject a core part of their religion and identity – sounds like old-fashioned bigotry from long ago. It is simply unacceptable.

At the same time, I have been inspired to see many non-Jewish Columbia students, professors and administrators going the extra mile to champion a welcoming environment for Jews, Israelis and everyone else. It was very moving when the leader of the law school’s student senate posted a statement in October urging that “every single student in our law school deserves to feel safe and know that they belong.”

This is a central value of our university. Indeed, it is a moral imperative. But unfortunately, some faculty, staff and students have fanned the flames. Others have tried to stay out of what they consider a mere political disagreement about the Israeli-Palestinian conflict even when this mistreatment of Jews and Israelis rises to the level of harassment and discrimination.

For those who are not motivated by principle to stop this misconduct, I have a simple message for you: You have to do it anyway because you need to follow the law. By following four legal principles, universities can prevent discrimination against Jews and others while also protecting free speech and academic freedom.

Free speech is not a free lunch. Everyone must have the right to express their views, regardless of their viewpoint. State universities are obligated to follow the First Amendment, while private universities like Columbia typically choose to follow it. But under these free speech principles, people are not free to express themselves at any place, at any time and in a way that limits others from expressing their views or from exercising their rights as students to engage in the university’s main mission of teaching, learning and research.

So although protests are important, they cannot disrupt classes or other activities. When protests were regularly held inside one of the schools at Columbia, a student I know had to endure heckling for her pro-Israel views as she walked through them just to get to class. Likewise, pro-Palestinian protesters made it harder to hear the speakers – at an event promoting constructive conversations about the war in Gaza, no less!

To protect everyone’s right to speak and learn, Columbia recently adopted a “speakers’ corner” approach, which allows protests in designated locations but bans them in academic buildings, dorms, libraries and dining halls. Violators first get a warning that will not remain on their record, and then the penalties become more severe.

Thou shall not discriminate. Under Title VI of the Civil Rights Act of 1964, universities cannot tolerate a hostile learning and work environment for Jews, Israelis or any other protected class. This rule is not supposed to shield students from opinions they do not share – that would impede the university’s educational mission – but it should protect them from ethnic slurs (like “F–k the Jews”), as well as stereotyping and calls to violence.

Unfortunately, some Columbia faculty and students asserted that all veterans of the Israel military are dangerous and should be barred from campus. Since most Israelis are required to serve in the military, this blatant stereotyping slings mud at nearly all Israeli students, faculty and staff.

Calls for violence against a protected class are also problematic, although deciding what actually is a call for violence can be hard. “Gas the Jews” (a chant that reportedly was heard at another university) clearly is, while “free Palestine” clearly is not. But what about “globalize the intifada” or “from the river to the sea”? Many Jewish students hear these chants as calls for violence (as I do), while many who use them say they are not.

Under federal antidiscrimination rules, the answer can turn on whether the focus is on the audience’s reaction or the speaker’s intent. So which is it? In recent years, as the task force noted in our report, universities have often deferred to the audience, for instance, when Black, female or transgender students registered concerns in discussions of, for instance, policing, affirmative action, sexual assault and transgender rights. In other words, language is considered a call for violence when those audiences reasonably say that they hear it that way.

But since October 7, when Jewish and Israeli students have lodged similar complaints, the focus has largely shifted from the audience to the speaker. While there are policy justifications for either approach – that is, to prioritize either impact or intent – inconsistency is not justifiable. Universities cannot use one approach for Jews and another for other identity groups.

Be consistent. Indeed, Title VI does not just ban discriminatory harassment and a hostile environment; it also bans inconsistent treatment of different identity groups. The statute does not authorize an “oppression Olympics,” in which identity groups jockey for a favored position. The statute guarantees them the same rights.

This principle is also why it’s problematic to add a definition of antisemitism to a university’s antidiscrimination rules and then consider whether acts fit that definition or not. Some actually have criticized our task force for not doing this, but it would have been a legal misstep. Title VI does not ban “antisemitism,” but a hostile environment and discriminatory harassment, concepts that apply to all protected classes. Developing bespoke versions just for Jews – for instance, establishing an act as hostile only when it violates a particular definition of antisemitism – isn’t acceptable.

Rules are not made to be broken. To protect speech and stop discrimination, universities need more than just the right words on a page. Their rules need to be enforced. Unfortunately, Columbia initially fell short in this effort after October 7.

For example, at first the staff charged with managing protests did not try to stop ones that were not authorized. Instead, the goal was just to avoid escalation. This hands-off approach made more sense in the past when protests targeted university administrators. When I was a law school dean years ago, I knew that being the target of protests came with the job. But protests this year have been different, affecting not just administrators but other students, who are in a very different position.

So the response to unauthorized protests has become more proactive. Students are told that they are breaking the rules and given a chance to stop. If they don’t, their names are taken and disciplinary action is initiated.

Our task force has also recommended an easier process for filing complaints about rule violations, additional time to investigate them and the release of aggregate information about our disciplinary processes (to show that the university is taking infractions seriously). The university has worked to implement these and other ideas.

Of course, the mission of a university is not merely enforcing rules but providing an education. Over time, opening minds with facts and analysis is the best defense against antisemitism and other bigotry. But to allow this educational process to flourish, we need to build it on a foundation of laws that are respected and enforced.

For more CNN news and newsletters create an account at CNN.com