To those on the Harvard Crimson Editorial Board who voted to publish “In Support of Boycott, Divest, Sanction and a Free Palestine”

To the Editor:

I am a former Climenko Fellow who loved teaching at Harvard Law School. I still have great fondness for the school, its students, and your newspaper. I now teach First Amendment Law at Dayton Law School.  I write to refute your editorial in support of the BDS movement, and specifically to refute the editorial’s analysis of the Israel-Palestine conflict, of America’s “first amendment blindspot,” and of the power imbalances at play.

The editorial, like most campus activism against Israel, is selectively critical of Israel. The editorial ignores Israel’s repeated desire to compromise with a two-state solution (including at Israel’s inception) and the Palestinian government’s continuous, fervent desire to abolish a country built by Holocaust survivors that remains a haven for a tiny minority of people still persecuted around the world.  The editorial also ignores the many ethno-states that are uncontroversial and the countries surrounding Israel where it is illegal to even be Jewish.  Sadly, the editorial sends a message to your Jewish writers (and readers) that they do not deserve to have a homeland.  You have chosen the anti-intellectual path of solidarity in ideology over the intellectual spirit of fairness and nuance that Harvard should represent. 

Your analysis of the “first amendment blindspot” with regards to Israel is also telling of the actual power dynamics at play.  As a scholar who believes in strong, robust First Amendment protections, I fully support all rights to criticize Israel. I do not believe this criticism is necessarily anti-Semitic, although a lot more of these criticisms are rooted in anti-Semitism than you acknowledge.  That said, the First Amendment rights that attach to boycotting are complex because boycotting is a coercive economic measure, not pure speech.  Further, the anti-Semitism that has increased in intensity on college campuses – often connected to anti-Zionist activism but certainly targeting all Jews – is often not treated the same way as incidents that trigger the speech-suppressive policies that administrators marshal to protect other targeted minority groups.  Your editorial ignores the chilling effects of these policies on classroom conversations on many important issues, although criticism of Israel is often a favorite topic of professors and students.  Jews are often uniquely tolerant of criticism on issues deeply connected with our identity and have also committed to the civil rights of other groups while being abandoned and often explicitly derided by many civil rights movements.    

Harvard’s past includes institutional discrimination against Jews who, despite not being wealthy, were scoring quite high on standardized tests. To limit the number of Jews so that wealthy Protestant families were not dissuaded from sending their children to Harvard, Harvard’s admissions process began to include more “holistic” factors unrelated to academic success. In the present day, the increasing ideological power of equity initiatives means that Jews, who belong to a tiny minority, will have decreasing representation no matter how much we devote ourselves to excelling at academic and intellectual pursuits. The number of Jews at Ivy League institutions has fallen. These equity movements, because they are ideological in nature, have begun to lead academic institutions down a path that is anti-intellectual, favoring some visions of justice over rigorous, fair-minded scrutiny of evidence. What has changed the mind of the editors of the Harvard Crimson does not seem to be careful study, befitting members of one of the country’s most elite academic institutions, but watching an art installation and listening to one-sided discussions. Your analysis demonstrates that what happened with this editorial was far more an act of power than it was one of reason, or even justice.

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