I've recently posted on SSRN a new essay, "Zionism and Title VI," forthcoming in the Harvard Law Review Forum. HLR had asked me to respond to an essay by Professors Ben Eidelson and Deborah Hellman, applying Title VI's antidiscrimination rules to recent campus protests. Here's the SSRN abstract of my draft paper:
Universities across America have been accused of failing to protect their Jewish and Israeli students by failing to enforce their own rules on campus protests. Under Title VI of the Civil Rights Act, no one may be excluded from participation in a federally funded activity on the ground of race or national origin. Yet while some protests have allegedly targeted Jews or Israelis for exclusion from campus spaces, more are alleged to have targeted Zionists, those who support a national home for the Jewish people.
A recent essay by Professors Benjamin Eidelson and Deborah Hellman raises doubts about the statutory basis for many such claims. This Response argues that Title VI may apply more extensively to university anti-Zionism than the authors maintain. If made a condition of full participation in university life, anti-Zionism is a form of national-origin discrimination, creating a hostile environment for Israelis forced to abjure their national origin or Jews forced to abjure their nationhood. Israel is the Jewish state in the same ordinary sense in which Greece is the Greek state or Czechia the Czech state; "anti-Hellasist" or "anti-Czechist" restrictions would create hostile environments in just the same way, and the doctrinal arguments for these "untargeted" hostile-environment claims seem stronger than the authors suggest. When a university abandons its ordinary rules, moreover—ceding to a protest movement the authority to deny access to campus spaces or resources—it bears greater responsibility for that movement's actions and renders more menacing that movement's demands.
The Response concludes by noting that even when Title VI is silent, or even when free-speech doctrines might insulate violent slogans or student-group expulsions, the legal questions don't exhaust the moral ones. The campus anti-Zionist movement needn't be classified as antisemitism in law for it to be antisemitic in fact.
And from the introduction:
