How To Expand the NCAA Tournament

It's not breaking news, but apparently the NCAA is considering expanding its college basketball tournament to 72 or 76 teams (from the current 68).

As a certified curmudgeon, I've opposed every tournament expansion since it was at 64 teams. The basic problem is obvious: the expansions are all soulless cash grabs, and the beneficiaries are inevitably the ninth best team in the Big Ten with a barely over-500 record who'll get trounced in one round, two if lucky. Who cares?

The nominal reasons for this expansion (again, skipping past the real one, which remains "cash grab") are (a) that there are more schools in Division I than ever before, and (b) that the small number of "play-in" matches means that most fans don't view the games as "real" parts of the tournament. Expanding the number of play-ins so it more closely approximates a full tournament round means more attention to all of them.

The first reason doesn't move me. The second actually does carry some weight for me, since my absolute favorite sports weekend of the year is the first two rounds of the NCAA tournament when it's just an endless stream of do-or-die basketball and a more robust play-in round might approximate that. But again, I just don't have any real interest in seeing a few more mediocre Power Five conference teams get trotted in as sacrifices.

So here's my proposal: expand the tournament, but all the new at-large bids have to go to conferences who don't have any non-automatic qualifiers.

After all, isn't that why we watch the tournament? It's for random schools from nowhere-ville coming out of the 14 seed slot to knock off Kansas. Give me more opportunities for that! Right now, there are a bunch of conferences whose only representation is the auto-qualifier, and in some of those cases the auto-qualifier is not the best team in the conference (looking at you, 1997 Fairfield). I don't have a problem with that -- it's awesome when an objectively terrible team has a miracle run in their conference tournament to gain the auto-qualifier. But the point is I'd absolutely prefer the actual best team in that conference to get a chance to dance over some big-name school that's already proven they can't hack it.

So sure -- expand the tournament. But this time use the opportunity to spread the wealth. Down with the mediocre big names; up with the obscure mid-majors!

A Lawsuit is Not a Press Release

If I were a judge, I think I'd be a lot more sanctions-happy than most judges.

Bad legal arguments bother me. And more specifically, lawsuits that are filed not because there's an actual colorable legal claim, but as a form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive. Many defamation suits fit this profile (who needs SLAPP when there's Rule 11?), but there are others. And too often I see people cheer these suits (at least when they fit the right ideological profile), and I hate to see it -- these lawsuits serve no purpose other than to allow gloryhounds to chest-thump their virtue while wasting time and resources, not just of the judiciary, but of the very social movement they claim to be advocating for.

One example is the "class action" lawsuit recently filed against two Bay Area Democratic Representatives claiming that their votes in favor of aid to Israel caused emotional distress to constituents who believe that Israel's conduct in the Gaza war constitutes a genocide. As a matter of law, the suit is patently frivolous -- it is obviously foreclosed by the Speech and Debate Clause, and a moment's reflection should make anyone with half a brain recognize that enabling disappointed constituents to sue their representatives for their congressional votes is a capital-B Bad Idea. The suit has no chance of succeeding and serves no purpose other than to generate headlines, and that is not the purpose of the judiciary. I don't know if the named plaintiffs are willing participants in the charade or are genuinely deluded into thinking there is valid legal claim here, but if it's the latter, then they're being exploited in a terribly grotesque fashion. Either way, I hope the lawyers who filed it are sanctioned.

But lest anyone get too smug, this is not a sin with any particular ideological proclivity. A federal court in the Eastern District of Pennsylvania just dismissed a lawsuit filed against Haverford College alleging a hostile environment against Jews on campus. The dismissal was based on the fact that the pleadings were, in so many words, a sustained rant rather than an attempt to communicate a cohesive legal complaint.

At this stage, a court would typically review the relevant facts. I cannot cogently do so here due to the sprawling and disorganized character of Plaintiffs' Amended Complaint, which appears to detail every frustration and disagreement of Jewish students and faculty that has occurred at Haverford over the last year. It spills pages of ink on lengthy frolics about events on other college campuses and about ideological debates. Rather than isolating instances of harassment and logically relating them to the elements of a hostile environment claim, Plaintiffs set forth a running list of grievances that reads more as an opinion editorial than it does a legal complaint.

I am familiar with this sort of "legal" writing, and I am glad to see a judge call it for what it is. It's written by lawyers who forget that their job is to craft a legal complaint and instead view the courts as a suitably august forum for airing every point of grievance and riding every ideological hobbyhorse they've ever encountered. In some ways, the Haverford case is worse than that Bay Area one, because in the former the judge agreed that some of the allegations might have presented cognizable claims under Title VI but couldn't move forward on them because they were buried inside such an amalgam of irrelevant ranting that they failed to present an actionable complaint. The (potentially) valid grievances of the Jewish plaintiffs at Haverford were, in effect, sacrificed so that their lawyers could play soapbox orator. They treated the lawsuit as one big press release, and everybody -- their clients included -- is worse for it.

The lawyers suing Haverford aren't stupid, at least in the traditional sense (they attended Harvard and U. Chicago Law).* But they decided that this issue was too important for them to act as lawyers, and instead decided to act as demagogues. That's despicable. It's an abuse of the judicial process, it's unfair to Haverford College, and it disserves the Jewish community they nominally purport to defend.

* They literally just took down the link to the bios of all their attorneys,

"... But They're Doing Great" at UW

The University of Washington has just released a joint task force report on antisemitism and Islamophobia on its campus. I haven't read it cover-to-cover, but I have looked it over, and it seems to be an excellent and thoughtful report on an obviously touchy subject, for which the authors deserve kudos.*

There's a lot of interesting data to sift through, but there was one chart in particular that stood out to me, and not in a good way.

For those who can't read the chart, it asks a set of affected campus constituencies (e.g., Palestinians, Israelis, Jews, Muslims) how they assess the campus climate for themselves and all the other groups. The results were basically that each group said "things are awful for us and ours, but they're doing great!" So, for instance, when Israelis were asked this question, they overwhelmingly reported a hostile campus climate for Israelis and Jews, but generally reported that the campus was comfortable for Arabs, MENA people, Muslims, and Palestinians. Palestinian respondents reported the opposite -- they thought the campus climate was swell for Israelis and Jews, and terrible for Arabs, MENA people, Muslims and Palestinians.

I'll leave aside the first half of the equation ("things are awful for us") for now, though it's bad enough. One could I guess try to contest it if one wanted to, but I see little reason to doubt that the relevant communities are accurately reporting their own experiences in what has almost universally been characterized as a very rough year. But for the latter half of the finding ("... they're doing great") the polarization in responses is especially disturbing. 

The best case explanation I can think of is a failure of empathic imagination. Over many years, I've observed variations of this phenomenon where one's own lived experience of hurt and marginalization is paired with a decided conviction that everybody else is getting life fed to them on a silver platter. This certainly is part of my story around "Us Too-ism" -- everybody else supposedly can get a hostile speaker canceled at the first sign of discomfort, so why not us too? -- but it long predates it. Eight years ago I was writing about circumstances at Oberlin where both Jewish and Black students contrasted tepid community responses to discrimination targeting them with what they saw as "hypervigilant" reactions enjoyed by the other. That post in turn referenced a post almost ten years before that about the "pane of glass" which is obvious to someone standing in one position and invisible to their neighbor looking from a different vantage. We're all able to see the pane of glass standing as an obstacle in front of us, while blind to the pane of glass similarly blocking our neighbor.

And so, perhaps, at UW. The Jewish and Israeli students feel lonely and isolated. They look over at the encampments and the teach-ins and the flag-wavings and think "how lucky they have it -- clearly, the community has their backs when they cry out." The Muslim and Arab and Palestinians students, meanwhile, feel hyperscrutinized and overpoliced. They observe the congressional hearings and the discipline meted out to protesters and think "how lucky they have it -- look how responsive the powers-that-be are to them when they claim injury!" Both groups feel as if they're walking on eggshells, both feel that the tremendous stress and strain they are under is being ignored. In concept, this shared vulnerability could be a vector for solidarity and compassion -- these feelings are commonalities, not distinctions. But the problem is this shared vulnerability isn't perceived as shared at all, but rather unique, and that further entrenches the feeling of loneliness.

And this, as I said, is what I'd consider the best case scenario. Another explanation for the polarized responses is that we're seeing, not a failure of imagination, but a motivated refusal to acknowledge the vulnerability of the "other side", in favor of a constructed image where their power can be contrasted with our weakness. I would not be the first to observe that there is a strand of contemporary politics that aggressively valorizes weakness and vulnerability as its own justification for political solidarity. Though sometimes identified with the identity politics left, there's actually no intrinsic political cadence to this -- the right makes this move all the time. Who can forget when Breitbart, playing off investigations into "Big Oil" or "Big Pharma", created an entire subsection of his website dedicated to resisting the overawing power of "Big Peace"(!)? And of course, the contemporary right contains no shortage of claims that it stands against the elites, the powerful, the globalist cabal -- all attempts to claim the mantle of weakness against the evils of strength.

The true cynic would point to this politics to explain why each group is so emphatic about its own vulnerability -- it wants to stay on the right side of the empathy line. As I said, I don't think one needs to go that far -- I think it is more than likely that each group is accurately recounting its own experiences about itself. The point is, though, that where vulnerability (or at least the perception thereof) is a political resource, it can become a strategic imperative to deny it to one's competitors. Acknowledging that a given community -- Jews and Israelis, or Palestinians and Muslims -- are in a vulnerable state means acknowledging them as valid subjects of empathic concern and legitimating some flow of solidaristic political resources in that direction. Denying that acknowledgment can obstruct that flow, and better maintain an asymmetry in who is worthy of care and concern. Even in circumstances where antagonism isn't that overt, where resources of care and concern are assumed to be scarce, there still will be the temptation to withhold that acknowledgment and try to direct the flow to oneself.

The reason why this is worse that the first explanation is that it isn't something that can be resolved just by expanded imaginative capacities. Again, it speaks to a motivated refusal to recognize the aforementioned joint vulnerability. It's not just ignorance, there are reasons behind it. The work of overcoming this refusal to extend empathy means, in a very real sense, insisting on sharing a political resource that feels very much in short supply with a group that may in important respects feel like a rival. That is not an easy task, least of all in present climates.

Which is the true explanation? To be honest, I suspect there's a little of column A and a little of column B. That does give me a little hope, because I still believe -- justifiably or not -- that there are enough people who won't run away from their expanded empathic imagination such that, once they're peeled away from their more fundamentalist fellows, a new core of solidarity can emerge. Maybe that's wishful thinking on my part. But I don't see much of an alternative.

* I also read a critique of the report issued by a small group of Jewish UW stakeholders (I actually read the critique before the original document). I'm not a member of the UW community myself, and so you can take what I say with a grain of salt. But to be perfectly honest I found the critique to be churlish, even petty, clearly partisan in its motivation, and ultimately not at all compelling. 

The overall theme of the critique was a contention that the report was intentionally suppressive of anti-Zionist/pro-Palestinian Jewish viewpoints and so generated skewed conclusions. That contention was extremely weakly supported -- it seemed to me that the critics came in spoiling for a fight and made a series of tendentious or stretched inferences to justify picking one. For example, a single passing mention of the IHRA antisemitism definition (which the report said it "took into consideration along with other definitions", and then never mentioned again) inspired a veritable temper tantrum by the critics and a demand that the university instead adopt the Jerusalem Declaration of Antisemitism as its preferred definition (ironic, since JDA at its inception insisted that it should not be used as a definition of antisemitism in official proceedings!). It also lambastes the report for "attacks" on DEI work, but there is no such attack -- the report actually recommends incorporating antisemitism education and training into existing DEI structures. One can contest the mechanisms through which that incorporation would occur, but this is not an "attack" in any sense -- so where on earth is this defensiveness coming from other than preloaded beliefs that reports such as this are presumptively part of an anti-DEI crusade?

Perhaps the most serious allegation contained in the critique is its speculation that the report authors skewed their focus groups toward pro-Israel identifying students. This is a very grave charge, but the critics give absolutely no concrete evidence to support it. Literally their only basis for making this claim was that "one focus group was held at UW Hillel (an organization with standards of partnership that explicitly disallow affiliation with Jews critical of the state of Israel)." That and that alone was sufficient for the critics to assert with confidence that "We know" (we know!) "that whatever steps were taken were not sufficient" to ensure proper representational diversity.

This is absurd on a multitude of levels. First, the critic's position apparently is that an attempt to connect with the UW Jewish community should have a blanket policy of refusal to work with Hillel (again, their complaint is that one focus group was held there), which is an absolutely wild claim to make and utterly incompatible with actually trying to get a deep cross-section of the UW Jewish community. Second, it's simply false to say Hillel's partnership standards "explicitly disallow affiliation with Jews critical of the state of Israel." The partnership standards aren't directed at students qua students to begin with, and they are a fair flight more specific than targeting those who are merely "critical of the state of Israel" -- an especially important distinction because the UW report is actually very good about recognizing the heterogeneity of Jewish views on Israel and expressly disaggregating those who are "critical of Israel" from those who are outright "anti-Israel" (in the sense of wanting Israel to cease its existence). At most, only the latter would find Hillel an exclusionary space, but the numbers suggest that this cadre is a small (though not non-existent) minority amongst Jewish students. 

Finally, and most damningly, the report clearly did speak to and incorporate the views of the anti-Israel minority. How do we know? Because the report (to its credit!) specifically delved into and devoted an entire section to experiences of marginalization by anti-Zionist Jews -- something one does not see every time one of these reports emerges but is absolutely appropriate given the subject matter. The report even says it included comments from "self-identified anti Zionist/anti-Israel Jews in proportion to their representation in the random sample of quotes provided to the task force co-chairs (18%)" -- that 18% figure is either equal to or if anything higher than (the report was fuzzy on this) the proportion of anti-Israel Jews in the UW Jewish community. Despite all of this effort, none of it is given any mention whatsoever in the critics' document. Perhaps they missed it. But it I think decisively belies the unsupported assertion that the report deliberately ignored the diversity of Jewish views on Israel at UW.

Ultimately, as someone who periodically does consulting work with university leaders on issues of antisemitism, I found this critique tremendously disheartening and frustrating. The report seemed unusually attentive to the diversity of views amongst Jews on matters relating to Israel, and seemed like a good faith attempt to accurately communicate the sentiments of the Jewish community as a whole. That even an effort like this was met with a response like that -- the near-reflexive at this point fuming about Zionist hegemony and suppression of dissident voices etc. etc. is, to be honest, a substantial deterrent in continuing that work forward. There's just no pleasing some people.

The Shut It Down Strategy at the University of Michigan

This is a really interesting article about goings-on at the University of Michigan, where a "Shut It Down" party won effective control of the campus student government in elections last spring (they have the presidency and vice presidency, and 22 of 45 student council seats). They ran on a platform of refusing to distribute student activity money unless and until the university administration acts on their demands for divestment. The funds not being dispersed include everything from subsidies for the airport shuttle to money for the Ballroom Dance team to rent rehearsal space. As many of the effected groups have noted, these consequences tend to fall on the most vulnerable and marginal students (who are dependent on subsidies and support to access the full panoply of campus offerings).

As far as "protests" go, it's hard to argue that this one is out-of-bounds. The students who ran on the shut it down platform made no secret about what they planned to do, and they were able to convince enough of their peers to vote for them (I don't know if 20% turnout is low or not for a student government election, where turnout often is thin even by America's comparatively low bar). "Democracy," as the saying goes, "is the theory that the people know what they want and deserve to get it, good and hard." We know well that political movements predicated on anti-"establishment" backlash and throwing sand in the gears of the "system" can generate genuine appeal -- at least temporarily -- and so too here. Whether that enthusiasm is sustainable once the machine actually starts sputtering to a halt is another question.

Practically speaking, the most obvious strategic analogue for what the students are doing is the recent choices of House Republicans, who have also regularly threatened to shut down government unless their political rivals cede to their demands. It is not clear, to say the least, that this strategy has worked out for the GOP -- either materially or politically -- and there are some reasons to think it will be even less successful in this context.

For one, House Republicans had the "advantage" of genuinely not caring about all the suffering their chaos play was going to cause. That sociopathic lack of empathy may or may not characterize the student political leadership at Michigan; it is quite plausible to me that they will feel more pressure to back down if and when the consequences of their defunding start to actually land on their fellow students. And I should be clear that when I say this sort of strategy isn't "out-of-bounds", I mean that it doesn't break any formal rules. Obviously, one can still criticize it for how it hurts vulnerable student in order to (perhaps not even effectively!) make a predominantly symbolic statement about a war occurring thousands of miles away.

For two, I don't see where the actual leverage over the university administration comes from. The tangible pain the Shut It Down caucus is proliferating falls almost entirely on the heads of students -- it doesn't (arguably in contrast to some of the protest activities) make the administration's life significantly more difficult. Faced with student frustration over, say, airport shuttles that have doubled in price, they can pretty easily lean back and say "we hear you, and the student council can release those funds any time it wants." Fairly or not, the comparative lack of democratic accountability for the administration compared to the student council means that any student frustration will probably be channeled towards the student council, since they're the ones who can be most easily ousted and they're the ones who are most obviously holding up distribution of the funds.

Indeed, the article suggests that there's already been some kind of side deal where the central campus will fund the frozen student activities, with the promise that the student government will pay them back later. On the one hand, this insulates the Shut It Down caucus from the consequences of their demands, perhaps making their protest more sustainable over the long-term. On the other hand, it also obviates the theoretical leverage they're trying to exploit (i.e., immiserating the campus), returning the "protest" to the level of the near-totally symbolic (for what it's worth, the Shut It Down leaders appear to be opposed to this deal -- they do not want the pain to be symbolic).

So on the whole, I'm skeptical that this strategy will work, and I think there is a solid chance -- particularly if the funding freezes actually are allowed to play out -- that there will be a substantial backlash against the Shut It Down caucus whenever the next elections are. But as "protests" go, this one is clearly one that is playing inside the rules of the game. In contrast to "shout downs" or violent disruptions or indefinite occupations of campus buildings, there is absolutely no question that students are permitted to run for and win elections in their student government and then decide to freeze their own budgets. I'm very interested to see how this plays out.

"Us Too-ism" Turns Off the Normies

You may have heard that a group of Columbia University administrators were sacked after someone posted screenshots of text messages where they were snarking at a panel on campus antisemitism they were in the audience for.

When that story broke, I was (and largely remain) of two minds on this. On the one hand, all of us have snarky texts that ripped out of context probably look pretty bad -- this sort of policing really doesn't end well for anyone. On the other hand, university administrators have a pretty grim reputation right now of treating antisemitism claims as trivial annoyances by bad faith actors, and these messages fit into that paradigm. There's a fundamental trust problem: many Jews do not trust that Columbia administrators are interested in seriously tackling antisemitism, and see these texts as verifying that disdainful dismissal; many academics do not trust Columbia's leadership to respond to antisemitism complaints with anything but reflexive brute force, and see this response as yet more kowtowing to an unappeasable media feeding frenzy. Both camps, in all honesty, have reasons for their mistrust.

But that's not what I what to concentrate on here, exactly. Rather, I want to take stock of one response in particular -- that of Kevin Drum. I'm a longtime fan of Drum's writing, which I think is a good exemplar of reasonably thoughtful and well-informed center-left "normie" politics. Seeing how he was responding to Israel's Gaza campaign was a good barometer of what people not in the hothouse of terminally-online left politics were thinking; in particular, it suggested that the belief that the current Israeli government is a fundamentally bad actor is not one confined to the "usual suspects" on the far-left.

In any event, one component of the Columbia controversy was the claim that the administrators themselves indulged in an antisemitic "trope" -- the suggestion that the panelists were hyping up instances of antisemitism as a "fundraising" opportunity allegedly feeding into claims about Jewish greed and/or perfidy. To this, Drum gave the textual equivalent of a giant eyeroll. He explained that he's long been suspicious of the word "tropes", which he said "in practice [is] used exclusively to imply someone has said something vaguely offensive without having the receipts." And this case, for him, fell squarely into that category:

I took a look at these text messages a couple of weeks ago and came away believing there wasn't much there. Since then the entire text conversation has been released, but it doesn't change things. During a panel discussion about antisemitism, the three deans in question shared private texts that you could fairly describe as snarky or irreverent. But that's about it.

To the Columbia administration, however, which was under siege from outraged alumni demanding that the three deans (plus a fourth) be fired immediately, the texts conveyed "a lack of seriousness about the concerns and the experiences of members of our Jewish community."

This is precisely backward. What the deans did was fail to show unconditional earnestness and obeisance toward every last grievance lodged by a particular community, no matter how ridiculous or overstated. This is apparently the price of admission to progressive society these days.

This whole thing is bonkers. The grievances of specific communities deserve to be given fair consideration, but they don't automatically demand absolute deference. In this case, the deans privately exhibited moderate skepticism toward a few of the claims from the panelists, some of it expressed a little bit caustically. None of it could reasonably be called antisemitic, and at most they deserve a verbal reprimand. Instead they're all out of jobs.

Drum thinks that antisemitism allegations here are thin gruel. Maybe you disagree. But one argument I've often heard, as against the claim that Columbia is overreacting here, is to say in essence "maybe so, but that ship has sailed -- every other group gets this sort of response when they claim to be the victims of discrimination, so it's only right that we the Jews do too." It's a version of what I've termed "us too-ism", and I've already outlined many of its pitfalls, not the least of which is the fact that the perception of what "every other group gets" is often not matched by reality. 

But Drum's reaction illuminates yet another problem: for many of the people who do perceive that this is what colleges "normally" do, they don't view that as a good thing. They view it as a bad, toxic practice they at best generally roll their eyes at. Indeed, I suspect most of the "normie" center-leftish Jewish commentators take that general perspective: when we're not talking about antisemitism, they view this sort of heavy-handed administrative response as indicative of wokeness gone wild, which is why when we are talking about antisemitism they defend similar behavior not on its own merits but rather via the us-too bank shot of "well, it's what everyone else gets." The problem is that when non-Jewish normies see this happening, they don't think "aha -- now the chickens have come home to roost, for the Jews also get to claim this bounty!" They think "oh great, yet another instance of overzealous activists peddling a grievance scoring one for cancel culture," and just slot Jews and anti-antisemitism politics into their mental category of "minorities who face some genuine discrimination but are taking things too far."

Again, all of this is aside from whether Drum is right "on the merits" to dismiss the antisemitism angle here. The point, rather, is to emphasize yet another problem with the "us too" argument -- more often than not, its reception outside the Jewish community is not going to be "well, fair is fair"; it's going to be to associate Jews with whatever malformed and exaggerated perception of identity politics gone wild already prevails within the broader public. It still might be a hit worth taking if one genuinely can defend the practices and arguments in question on their own merits, without relying on the crutch of what other groups are imagined to get. But if one's main basis for trying to draw blood is simply the "us too" entitlement, then it's definitely a fool's errand.

The Visible Elbow of the Protests

Recently, I had occasion to reread Charles Tilly's article "Invisible Elbow." Tilly's basic (oversimplified) thesis is that the "invisible hand" metaphor presumes far too much precision and fine-motor coordination for how social change happens, and misses the degree to which much of human action is a series of halting, try-your-best efforts that have a ton of unanticipated consequences and plenty of errors, followed by error and course corrections as we try to feel our way through to a satisfactory result. As far as the metaphor goes, instead of a delicate hand guiding change, things proceed more like trying to open a screen door with your elbow while holding a full bag of groceries. It's directional, it often works, but it's very imprecise and awkward and sometimes you miss the door and lose the groceries and everything splatters onto the floor.

I was thinking about this idea in relation to the campus protests wracking universities across the country. We've gone in the usual circles of "are they counterproductive", and my standard line on that is that whether a protest is "productive" depends on what it's trying to produce. But to give a bit more color, it seems clear to me that the protests are producing some things -- not always exactly what the protesters want, but also not necessarily orthogonal to their demands or desires either. It's not a hand, and it's certainly not invisible, but there is a visible elbow that's part of a blunt, awkward, jostling process that is creating change. That change is sometimes good, sometimes bad, sometimes in favor of the protesters, sometimes against, but one can't say the protests are not exhibiting an impact.

For example, one complaint I've heard from the protesting camp is that they're frustrated the media is focused on them rather than on what's happening now in Gaza. I'm not especially sympathetic to that complaint, but I also think they're underselling themselves -- I think the protests are actually doing a bang-up job of keeping the Israel/Gaza war forefront in American's minds at a time when it was starting to ebb a little bit. My template here was Russia's invasion of Ukraine, which riveted the nation's eyes and sparked intense activism ... for a few months. Eventually, though, it became background news as nothing really changed -- not that Russia started behaving better, but it stopped being new and fresh and started being part of the foreign policy normal. The Israel/Gaza war seemed like it was inching toward a similar status, but the campus protests (and the hyper-aggressive Columbia-style response to them) has warded that off for now. I think that has to be seen as a success for the protesters in the aggregate.

At the micro level, the "productivity" of the protests is going to depend a lot on local facts and practices. In some places, it's yielding deals to at least talk about divestment, and these deals in turn are being met with anger by Jewish stakeholder groups who are now asking "do we have to occupy a building to be heard?" My prediction on these meetings is that they will not result in termination of academic exchange programs with Israeli universities (perhaps excepting some symbolic carveouts where entire slates of programs were set to be phased out anyway -- I have to think that's what's happening here). There might be new rules on divesting from weapons manufacturers more broadly that are not structured as Israel-only one-offs but reflect some generally-enforceable decision not to invest in the sector.

It's also likely that in other quadrants the protests might generate broader-based backlash. Protesters appeared to have trashed the library at Portland State University following their occupation, it's hard to imagine that will redound to their benefit. One of Columbia's constituent schools elected an Israeli student body president propelled, it seems, in significant part by backlash to the protesters. And of course, if the protests end up giving a leg up to Donald Trump in the 2024 election -- based on a mix of "fracturing the Democratic coalition" and "independent voters just have an instinctive aversion to the sense of disorder" -- that, too, is a consequence.

On the whole, the protests are a "they" and not an "it" -- they are diverse in methods, tactics, goals, and productivity. They'll accomplish some things and fail to accomplish others, some of what they do is intended and some is unanticipated. Even if there is a "master plan", it's not going to come to fruition -- but that doesn't mean they're moot.

And the final thing I'll say is this: as someone who is generally averse to protest (and always has been -- say what you will, but for me there's no "well back in my day...." aspect to this), if you're unhappy at the conclusion that protesters are even in part driving the forces of social change either on campus or in the world as a whole, then it's incumbent on you to reflect on what other social forces might have filled the void and why they didn't. There's plenty that the protesters say or demand that I strongly disagree with. But I do think it's a positive that the institutions of American government and society are starting to treat Palestinian lives and rights as an integral part of the calculus we use to assess our policy in the Middle East, and to be blunt it's hard for me to say with a straight face that would have happened absent these sort of protest initiatives. If one doesn't like the protesters claiming credit for that shift, then one should have insisted on incorporating those interests into the calculus without the protests having been necessary. There has been a complacency (at best) in Congress for many, many years surrounding Palestinians rights and interests, and it was inevitable that void was going to be filled. If you don't like who is filling it now, ask yourself why the domain had been left empty for so long.

Steinbach's Revenge

My next law review article is on academic speech issues and the regulation of campus protest. You know, taking a break from the fraught topic of antisemitism and shifting over to something placid and uncontroversial. The article was accepted for publication in March, but I did ask my editors if I could make some revisions before we started the editing process due to, er, recent developments (they've been very supportive).

The framing device for my article was the student protests of a talk by Fifth Circuit Judge Kyle Duncan at Stanford Law last year (remember that?). Much of the attention surrounding that incident focused on the behavior of the Stanford administrator on-site, Tirien Steinbach. Steinbach was widely pilloried for her performance, which critics said was insufficiently protective of Judge Duncan's free speech rights and too accommodating towards the protesters. My view was that Dean Steinbach was being unfairly maligned -- she actually did a decent (not perfect, but who is?) job and that people were underestimating the difficult position she was in and the tough cross-cutting pressures that make superficially "easy" free speech issues hard.

I wonder if Steinbach is laughing, just a bit, right now.

A particular claim one saw coming out of the Stanford incident was that the disruptive behavior of the students was attributable to past and present failures by the Stanford administration to respond to illicit protest with a stern hand. Administrative indulgence was akin to tacit support, which emboldened the students to behave even more brazenly later on, and so the cycle went. If the university stopped mollycoddling and just crushed policy-violating protests with an iron fist, the argument went, then they'd send a message to the students that such activities were not okay, successfully deter future disruptions, and restore calm and campus order. Dean Steinbach's relatively conciliatory approach towards the Duncan protest was easily slotted into a villainous role under this narrative: it was a symbol of the limp and weak-willed administrative cowering that was ultimately responsible for "bad" protests.

When one looks at what is happening on campuses today, it's hard not to feel like that argument has been pretty decisively falsified. The current wave of protests and encampments really can be traced back to Columbia, and in particular Columbia President Minouche Shafik's decision to essentially immediately respond to largely peaceful encampments on her campus with a hyper-aggressive police intervention. The result, it turns out, was not that the students were duly chastened and slunk back to their dorms; the result was a cascading series of escalations and counter-escalations at Columbia and the emergence of copycat solidarity protest encampments at universities across the country. Even if one did believe that Shafik had the formal "right" to enact her decisions, it's hard for me to imagine that anyone can call these policies success stories, regardless of whether your metric is protecting free speech, preserving campus order, defending Jewish students, or anything else.

So with the benefit of now getting to see the road-not-taken, maybe Steinbach's choice to take a more conciliatory, non-confrontational approach toward the disruption at Stanford and not immediately resort to "am I formally allowed to call in the police to drag people away" didn't emanate from some personal disdain for freedom of speech. Maybe she was actually a professional who knew what she was doing.  Maybe there are lessons we can learn from her. Maybe the prevailing administrative value in responding to protests should not be reflexive insistence on asserting yourself as the boss.

There's very little for anyone to feel good about regarding what's happening on campus right now (I share Robert Farley's worry that we're rapidly constructing a social framing where "no one can be serious about protesting the war (or countering protests of the war) unless windows are broken and billy clubs bared"), but if anyone deserves to feel the slightest bit of schadenfreudean satisfaction, its Tirien Steinbach.

Campus Antisemitism Monitors Will Fail in Extraordinarily Predictable Fashion

Trying to capitalize on the latest headlines, a bipartisan group of legislators is seeking to create government "antisemitism monitors" that will be dispatched to colleges and universities across the country. Fail to meet their scrutiny, and colleges could lose gobs of federal funding.

If enacted, this policy will fail in spectacular fashion. How do I know? Because we have a template in state anti-BDS laws, which backfire in similarly predictable ways. The problem is that while it's conceptually possible to craft valid and legitimat anti-BDS legislation, in practice the laws will be enforced by some mixture of apathetic mid-level bureaucrats, terrified associate deans, and hotshot headline-chasing politicians. Put that cocktail together, and the result is such lovely headlines like "homeless hurricane victims can't get disaster relief until they sign anti-BDS pledge."

Indeed, if the antisemitism monitors do come into play, I can predict exactly the scenario that will go down shortly thereafter at Any College, USA.

1. A student group invites some Palestinian poet to give a talk;
2. Canary Mission or similar digs through the poet's instagram and finds a post where they say something that many people might find troublesome: "from the river to the sea" or "the Zionist state will be dismantled" or something of that ilk.
3. They shriek that this is a violation of IHRA and federal law and the university risks losing all its federal funding unless it acts.
4. Some associate dean for student affairs panics and cancels the talk.
5. There's a massive backlash from the students (possibly including protests) as well as various academic freedom/civil liberties watchdogs who call the cancellation out as censorial bullshit.
6. Pro-Israel/Jewish groups make surprised-Pikachu face at how they once again somehow became the poster child for heavy-handed campus censorship. Who could have predicted? (Answer: Everyone. Everyone could have predicted).

And for all the grousing about "only the Jews don't get ..." X Y or Z protections on campus, it's worth noting that no other campus minority currently has a monitoring program like this. A good rule of thumb for whether one is advisable here is if one also would support a similarly empowered and emboldened "anti-racism" or "anti-Islamophobia" monitoring program. If your answer is something along the lines of "while racism and Islamophobia are serious problems, I don't trust the implementation and I'm worried about the possibility of abuse and/or chilling free speech" -- congratulations! You've identified the exact reasons why such a program is inadvisable for antisemitism as well.

Israel Has a Right To Exist -- After That, It's All in Play, Part II

A few years ago, I flagged a poll of American Jewish attitudes regarding Israel that had some to my mind interesting data. Basically, many of the more strident "criticisms of Israel" -- ones that many mainline organizations had often characterized as antisemitic, like "apartheid" or "genocide" allegations (this was well before October 7) -- were not generally viewed as antisemitic by most Jewish respondents. To be clear, they were not agreed with either. But fewer than half of American Jews characterized such claims as antisemitic, which I found significant.

Yet there was significant outlier to this finding: the statement that Israel has no right to exist. That statement was overwhelmingly rejected and generally thought to be antisemitic. Contrary to what one might have expected, there seemed to be a significant number of Jews who had no problem with (or outright agreed with) statements claiming Israel was genocidal, but who drew a very firm line at denying its right to exist.

I found this a bit of a perplexing finding. It's not that I found the position incoherent, but it didn't seem to track any particular movement or cadre I was familiar with participating in the discourse. For example, the "thought leaders" (if you will) who tended to promote the view of Israel as an apartheid state did not, generally, take pains to affirm Israel's right to exist; in fact, they typically were quite dismissive of that claim as well. Indeed, I'm not sure I can think of any significant organization that occupies that lane of "Israel is an apartheid, genocidal state, and also it's wrong to deny its right to exist", even as statistically it seems that this is a significant quadrant of the political space.

More recent data is confirming this point, and thus deepening my confusion. A recent ADL survey found rising anti-Israel (and antisemitic) sentiments in the American public essentially across the board, some of the more alarmist findings include a third of respondents who wouldn't want to support a "pro-Israel" political candidate, almost 45% thought (at least "somewhat") that Israel was intentionally trying to inflict as much suffering on Palestinians as possible, and nearly a third thought Israel supporters controlled the media. Half of Gen Zers would be fine holding friendships with a Hamas supporter. And yet, here too, "Israel's existence" stands out as an outlier -- almost 90%(!) of all respondents thought that "Jews have the right to an independent country," a statement that may not be identical to "Israel has a right to exist," but probably is substantially overlapping for most people. Again, try to think of a major thought leader or NGO that takes the line "Jews have the right to an independent country" and also "Israel is intentionally trying to inflict as much suffering on Palestinians as possible" -- I don't know who we're talking about here. And yet, this distinction apparently does matter quite a bit.

The apparent distinctiveness of "Israel has the right to exist" or "Jews have the right to a state", which stands apart from even vitriolic criticism of Israeli policies, also can help guide how we interpret some new data on the state of antisemitism on college campuses. Eitan Hersh, who is doing absolutely essential work getting actual hard data to supplement the often "vibes-based" discourse around antisemitism, has released a series of new surveys measuring various components of Jewish (and pro-Israel) experience on campus. The first* of these, exploring the "social costs" of being Jewish as well as being a supporter of Israel on campus, found significant levels of exclusion along all fronts that rose dramatically after October 7. Some questions had nothing to do with Israel ("In order to fit in on my campus, I feel the need to hide that I am Jewish"; "People will judge me negatively if I participate in Jewish activities on campus."). But even the question about Israel -- "On my campus, Jewish students pay a social penalty for supporting the existence of Israel as a Jewish state" -- was tied to this seemingly distinct, outlier position of support Israel's existence, without any comment on particular policies (Hersh wrote that this question was "purposefully worded so that it doesn’t reference support for the current government in Israel or for any particular political view other than the right of a Jewish state to exist in the land"). Given that, the extremely high levels of social marginalization associated with this view -- over 75% say they will experience marginalization just for supporting Israel existing -- is quite alarming.

Hersh also asked a similar question of non-Jewish students: asking whether they "wouldn’t want to be friends with someone who supports the existence of Israel as a Jewish state" (so again, keyed to this seemingly distinct "Israel has a right to exist" position). While there was general uniformity amongst students of all political persuasions, liberal, moderate, and conservative, in how they answered this question (approximately 25% agreeing), the one exception was "very liberal" student for whom almost 50% agreed.

These findings might be worrisome even in taken in isolation. But juxtaposed against the broader polling which suggests that most people (Jews and non-Jews) do seem to view "Israel has no right to exist" as a distinctly problematic, redline position even if they otherwise endorse very strong criticisms of Israeli policy, and they're more worrisome still. It suggests that amongst at least some cohorts of younger Americans, the Israel-related views which trigger social sanction and penalty include even the most bare-bones "Israel has a right to exist position" that is overwhelmingly viewed as problematic not just by stalwart pro-Israel defenders, but even many erstwhile harsh critics. That, to me, is significant evidence that this problem cannot be waved aside as "conflating criticism of Israel with antisemitism" -- we have a more fundamental pathology at work here that needs to be tackled.

* The other two studies Hersh released cover how campus Jewish life and identity has altered since October 7 and how political ideology mediates student attitudes about Jews and Israel. All are very interesting, all include data that will challenge anyone's presuppositions and presumptions about where antisemitism "is" on campus and in what forms it manifests. And again, I want to applaud Hersh for giving us some helpful data in a field that is saturated with anecdote and innuendo. There's a role for narrative and a role for theory (I myself am a theorist, not an empiricist), but we're only helped when we have actual, reliable data upon which to tie our theories and narratives to, and I'm incredibly grateful to Hersh and his research partners for taking this project on.

Bad Faith Grandstanding on Campus Free Speech is Rewarded

The President of the University of Pennsylvania, Elizabeth Magill, has resigned in the wake of her testimony before Congress about university responses to campus antisemitism.

This is terrible news. To be sure, I don't think Magill is obligated to stay in a position where she feels she either can't be effective or can't function; she has no obligation to stick things out in what I can only imagine is right now an impossibly toxic atmosphere. But still, Magill deserved better; she said absolutely nothing wrong in her testimony. Yet the bad faith grandstanding of the likes of Elise Stefanik -- an antisemitic conspiracy-mongerer in her own right -- has claimed a high-profile victim.

I published my post Thursday before reading Ken White's more colorful response to those smearing Magill, but I endorse it in full. There have definitely been other prominent free speech advocates who have taken the right line here, including Eugene Volokh and David Lat. 

But others are not rising to the moment. I flagged in my last post Keith Whittington for wrongly and misleadingly making Magill rather than Stefanik into his standard-bearer for greater campus restrictions on speech -- even if we think Magill was wrong to begin bending to Stefanik's threats, it's evident that Magill did not originate them. To the contrary, the backlash against Magill -- which Whittington tacitly tried to latch on to -- was and is entirely about her perceived unwillingness to bend sufficiently on protecting free speech. Anyone who was joining the dunk party on Magill was, implicitly or explicitly, endorsing the very unambiguous politics of free speech censorship that Stefanik was explicitly promoting. I can't top Ken White here: "You — and I say this with love — absolute fucking dupes."

Now that Magill has resigned, here is how Whittington reacted to the news:

It's hard to imagine missing the point by a wider margin than this. Whittington's worried that Magill's resignation will be "construed" as a "mandate to shrink the space for free speech" and to "cater to the sensitivities and political preferences of donors and politicians"? Yeah, no kidding -- it will absolutely be "construed" as doing both of those things because that's exactly what prompted it. The lesson that was meant to be sent and which will be learned is "shrink the space for speech when politicians and donors demand that you do so." There's no ambiguity here; that's the entirety of what happened. Anyone who didn't want that to happen should have come out firing in defense of Magill and in opposition to the roiling censorial mob that Stefanik effectively incited.

Magill felt compelled to resign because she publicly articulated -- in the most hostile room imaginable -- the free speech values that Whittington claims are essential. That's it. And that Whittington still cannot name the actual enemy here -- cannot state clearly that Magill got it right, is being punished for getting it right, and it is rabble-rousing Republican demagogues who showed their whole face in terms of demanding censorship under the guise of protecting Jewish students -- is shameful.

I'm also not feeling especially patient towards some of the other common lines I've heard that try to rationalize why it's okay to blame Magill as having done something wrong. One common response I've seen is to say that the witnesses were poorly prepped for the particular environment of a congressional hearing; with better preparation, they could have avoided the "traps" laid out in front of them. I'm doubtful: I think it is the hubris of very smart people in particular that think they can go into a demagogue's home turf, where they're entirely in control of the proceedings, can control the flow of questioning, can reclaim time whenever they want, and outmaneuver their "traps". It's the same hubris that makes liberals think they can go on Fox News and "outdebate Hannity". No you can't, and it's not because Hannity is some secret genius. It's that he has the home field advantage -- he knows how to play this particular game better than you, precisely because it's a "game" that does not in any way reward intellectual honesty or virtuosity.

A similar argument is that, while the responses of Magill et al may have been formally, legally, correct, they were inappropriate in this context -- their role was not to be lawyers but public advocates for their university, and their sin was misapprehending what was called for from their position in this context. My former colleague at Berkeley Steven Davidoff Solomon, for example, described the university presidents as "prepared to give answers in the court — and not a public forum,” and that was their undoing: their job here is “not to give legal answers, it’s to give the vision of the university."

Once again, I'll cry foul. Yes, there are many situations where a technically correct answer nonetheless can be a bad answer because it skirts some larger truth or is inattentive to important surrounding context, which a good answer would pay heed to. But this argument only works if the problems with the "technically correct" answer are not the facts which make it correct. The people who are mad at Magill are not mad based on something like "yes, maybe it's technically true that there are some circumstances where 'calls to genocide' are protected from formal sanction, but it's more important right now to emphasize how heinous those calls are even if they always be literally punished." The thing they're mad about is the thing that Magill said which was true: there are some circumstances where even 'calls to genocide' -- and we're not even getting into Stefanik's attempt to frame the at the least more ambiguous case of 'intifada' chants as a "call to genocide" -- are protecting from formal punishment. As Howard Wasserman wrote:

Magill, Gay, and Kornbluth did not fail to denounce calls for genocide as antisemitic. No one asked whether calls for genocide or "river to sea" are antisemitic; Stefanik asked whether those statements constitute protected speech and they gave the correct answer of "it depends on context," because it does. In fact, they did at points condemn the message, just without expressing intent to sanction the speech where it remained protected.

Put differently, it's fine to say that in some cases a "technically correct answer" isn't good enough, but only if your proposed alternative is not to demand the speaker be overtly and substantively incorrect.

The last thing I'll say is that I'm not generally interested in point-tallying of the "this is the real cancel culture" variety. Free speech, as I've often said, has mostly fair-weather friends, and no camp has covered itself in glory across the board. What I will say though is that no matter how one tallies the overall scoreboard, this absolutely is an incident where the forces of censorship won and those demanding respect for free speech principles lost. The next time we face an incident where some controversial right-winger comes to campus, it will be a lot harder to persuasively lecture our students that as hateful and heinous as this figure may be, this is the demand of free speech protections etc. etc. etc., because they will have seen in vivid detail just how easily those principles can be forced to bend. 

Maybe you think that's a good thing. I still think it isn't. And at the very least, the practical shakeout of who will in practice see their speech censored and who in practice will be able to access administrative protections remains to be seen. I have zero confidence that this will either find a stable and accepted equilibrium or ultimately redound to the benefit of young Jews enduring antisemitism on campus.

Bad Faith Grandstanding on Campus Free Speech Shouldn't Be Rewarded

Many of you have seen the fallout over recent congressional testimony about antisemitism on college campuses, featuring the presidents of MIT, Penn, and Harvard. A particularly high-profile exchange came from Rep. Elise Stefanik (R-NY), demanding to know if calling for "genocide" of Jews violated these university's conduct policies. 

The context of this questioning was the use of "intifada" in campus protests, which Stefanik suggested should be viewed as "genocidal". Right from the start, that should give us pause -- the ambiguity of "intifada" being conflated into "genocide" on its own gives ample reason for the university presidents to demur over committing to formal penalties. And certainly, in a world where its increasingly common to claim that Israel is pursuing a policy of genocide towards Palestinians, Jewish leaders should think long and hard about whether they really want to institute a rule that speech "advocating genocide" can be banned from campus. As Justice Black put it in his Beauharnais dissent, warning minority groups about the "victory" of securing a ban on hate speech: "Another such victory and I am undone."

Nonetheless, I've seen many people praising Stefanik for her "hard questioning", and dismissing the university presidents' responses as "dodges" or missteps. As grandstanding, I might concede that Stefanik was effective. But on substance, she was dead wrong, and the university presidents got it right. What we had here was a textbook example of an effective demagogue putting her targets in an impossible situation, and resolutely refusing to allow them to give a "good" answer, and I'm annoyed that this is being viewed as anything other than the bad faith rabble-rousing that it is.

Jon Chait has an excellent piece on this that strikes exactly the right notes. Here's his reprint of the relevant exchange between Stefanik and UPenn President Elizabeth Magill.

STEFANIK: Ms. Magill, at Penn, does calling for the genocide of Jews violate Penn’s rules or code of conduct? Yes or no?

MAGILL: If the speech turns into conduct, it can be harassment. Yes.

STEFANIK: I am asking, specifically calling for the genocide of Jews, does that constitute bullying or harassment?

MAGILL: If it is directed and severe, pervasive, it is harassment.

STEFANIK: So the answer is yes.

MAGILL: It is a context-dependent decision, congresswoman.

STEFANIK: So calling for the genocide of Jews is, depending upon the context, that is not bullying or harassment. This is the easiest question to answer. Yes, Ms. Magill. So is your testimony that you will not answer yes? Yes or no?

MAGILL: If the speech becomes conduct. It can be harassment, yes.

STEFANIK: Conduct meaning committing the act of genocide. The speech is not harassment. This is unacceptable. Ms. Magill, I’m gonna give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn’s code of conduct when it comes to bullying and harassment? Yes or no?

MAGILL: It can be harassment.

This has been treated as Magill being evasive and Stefanik trying to nail her down. But in reality, everything Magill is saying is exactly correct. What she said is pretty similar to how I would've responded to my own students if they asked what the rules were surrounding such speech in a campus environment, and I resent the notion that giving an accurate answer to that question should be characterized as a faux pas. 

The truth is that even hateful speech -- and a call to genocide certainly qualifies as one -- is not the subject of proscription on university campuses. This is not some rule that was just made up when Jews got antsy; it was the same principle that demanded UC-Berkeley permit an unabashed racist like Milo speak on campus and insisted that avowed White supremacist Richard Spencer be allowed to give talks at campuses nationwide. Antisemitic speech is antisemitic, but when it is just speech and not conduct, it is still protected by principles of free speech. In her testimony Magill held the line admirably, and now she's being pilloried for it.

This is why I'm actually a bit annoyed at this Chronicle article by Keith Whittington, speaking as founding chair of the Academic Committee of the Academic Freedom Alliance. Whittington presents a choice looming for college campuses on speech, between holding fast to free speech principles versus seeking to restrict speech on basis of content in the name of "safety". The former position (which is also Whittington's) he associates with Stanford Law Dean Jenny Martinez, and how she handled the aftermath of the anti-Kyle Duncan protests on her campus. The latter position he ties to Magill:

A quite different path is suggested by the University of Pennsylvania’s president, M. Elizabeth Magill. Magill has come under particularly intense pressure to address perceived antisemitism on her campus. In her testimony to the congressional committee, she emphasized that “Penn’s approach to protest is guided by the U.S. Constitution” and gives “broad protection to free expression — even expression that is offensive.” But when confronted with questions about whether calls for genocide violated university policy, Magill and her fellow presidents stumbled in their replies. As a result, Magill released a short video. There she repeated that “Penn’s policies have been guided by the Constitution,” but she added that “in today’s world … these policies need to be clarified and evaluated.” She promised a “serious and careful look at our policies” with an eye to ensuring a “safe, secure, and supportive environment.” She will, she promised, “get this right.”

Magill’s implication is clear: The university’s policies need to be revised so that they do not so closely follow the Constitution; they should instead prioritize students’ sense of safety. Protections for free expression and perhaps even academic freedom might well be pared back in the process.

Here's why I'm mad about this. It's true that Magill has backtracked on the commitment to absolutist free speech protections in the wake of the fallout over her testimony, and that's unfortunate. But Whittington's framing implies that Magill from the outset was hesitant to forthrightly defend the free speech rights of "offensive" speakers on campus, and now has gotten even worse. That's the opposite of what happened: Magill in her testimony said exactly what Whittington thinks she should have said -- and she's getting hammered for it. Contra Whittington, she did not "stumble" during the testimony itself -- or if she did, it's only from the vantage of those who take Stefanik's view that it is a misstep not to endorse paring back academic freedom and free expression in deference to students' sense of safety. 

For those who adopt Whittington's view on free speech, Magill's congressional testimony was not a "stumble" but a clear articulation of the proper position of the university. Whittington accordingly should have had her back; he should have said explicitly that the university presidents got it right in their congressional testimony and the backlash they're enduring for it is the real threat to free speech. Instead, he hung her out to dry as she takes the brunt of public heat for the position Whittington purportedly wants to see more university presidents defend. What do we expect will be the result of this? Unfairness to Magill aside, what does Whittington expect will happen -- what incentives are university administrators given -- when they see that putative "free speech" allies won't give them credit for saying the right thing on campus free speech rules. It's hardly a shocker that Magill is yielding in the face of overwhelming public backlash if even her "allies" refuse to back her up. As De Tallyrand put it, "it's worse than a crime, it's a blunder."

At the very least, Magill does not deserve to be the namesake of the censorial impulse. That dubious honor should have been attached to Stefanik (who isn't even named in Whittington's piece). As Chait writes:

What Stefanik was demanding was the wholesale ban on rhetoric and ideas that Jews find threatening, regardless of context. A university should protect students from being mobbed or having their classes occupied and disrupted. But should it protect them from an op-ed in the student newspaper calling to globalize the intifada? Or a demonstration in an open space demanding “From the river to the sea”? That would entail wholesale violations of free speech, which, in addition to the moral problem it would create, would likely backfire by making pro-Palestinian activism a kind of forbidden rebellion rather than (as many students currently find it) an irritant.

The presidents’ efforts to deflect every question about genocide of the Jews into a legalistic distinction between speech and conduct may have sounded grating, and Stefanik’s indignant replies may have sounded like moral clarity. But on the whole, they were right to focus on the distinction between speech and conduct, and Stefanik was wrong to sneer at it.

It may be unfortunate that, after the fact, Magill is bending on this important point. But as disappointing as that failing is, she isn't the originator of the threat. The actual villains of the story are the likes of Stefanik -- they're the ones proactively, not reactively, demanding that university's sacrifice free speech protections in service of student safety. If we can't name that wrongdoing; if we can't push past misbegotten awe at Stefanik's accomplishments in demagoguery, then the situation is going to get worse far before it gets better.

College Football is Ruining College Sports

[Graphic: Washington Post]

Another huge wave of conference consolidation just hit, as eight schools just departed the PAC-12. Oregon, USC, Washington, and UCLA are headed to the Big Ten, while Arizona, Arizona State, Colorado, and Utah are moving to the Big 12 (the schools currently remaining in the rump PAC-12 are Stanford, Cal, Washington State, and Oregon State).

These conference realignments and consolidations are entirely being driven by college football. Even men's college basketball -- the other marquee moneymaker -- really doesn't play a role (we saw that when Maryland moved from the ACC to the Big Ten, a clear sacrifice of basketball rivalries for football dollars even though Maryland's outstanding basketball program is far more storied than its pedestrian football team). And all the other sports are complete afterthoughts -- there is no advantage whatsoever to UCLA's baseball team flying all the way across the country to play Rutgers.

The thing is, I don't know of anyone who's defending this on any basis other than the football cash grab.  And given the titanic sums in play, one can even understand that the schools in question feel like they've got no choice but to make the moves. I do feel a twinge -- just a twinge -- of sympathy for Florida State, which is missing out on massive payouts because it's stuck in the comparatively uneconomical ACC.

But the fact is that outside of football these conference realignments are just terrible for college sports. It makes me wonder whether there is a way to spin off the Big Ten and Big 12 as football-only conferences, so that in all other sports universities play in their traditional and more regional home bases. I can't imagine the Big Ten actually cares if they're still Oregon's home for gymnastics, so long as they're getting those big football games. If the NCAA or whomever could step in and basically broker a compromise where these conferences get whatever football teams they want but leave the other sports programs alone, you'd think something could be worked out. 

To be sure, I think even for football these realignments are doing real damage -- but with the money in question I'm dubious there's any way to put up resistance. It might be more feasible to just give up on college football being anything but a soulless cash grab and work to make it so that "what makes sense for football" doesn't end up dragging all the other sports down with it.

Build Back Better Colleges

In the wake of last week's anti-affirmative action decision, Larry Summers wrote an editorial urging that elite colleges respond by becoming less exclusive. Grow. Admit more students. Add more programs. Invest in education.

I could not agree more. And it's something we need to do on all fronts. Yes, the Ivy Leagues should get bigger. But the great public universities in our country should also be expanded on. The University of California system is one of the great engines of economic mobility and advancement in large part because it is huge. But there has not been a new UC campus created in almost twenty years, and UC-Merced is by far the smallest undergraduate campus in the entire system. You have to go back another forty years for the most recently established UC campuses which are of a size comparable to the system average (both UC-Santa Cruz and UC-Irvine were established in 1965). Why not create a new UC in Sacramento, or in the Bakersfield or Modesto? Or hell, put one up in Redding? 

Higher education is in a weird moment where there is simultaneously an approaching demographic cliff that will obliterate demand at the bottom end of the scale even as student demand for the top schools surges to unprecedented heights. I don't have answer to the former problem. But the only way to respond to the latter is to increase capacity in "elite" institutions, and that in turn will take a massive investment in education to absorb the tidal wave of demand. 

It's not enough for colleges to exist -- we probably have enough dorm room beds already in the United States. They have to be great colleges -- colleges that are well-supported and well-endowed and well-resourced so that the students who attend can afford to go and know that they're getting an excellent education from top-level professors. Certainly, the far longer-standing crisis in graduate education means we don't lack for supply in the last category. But we also know there's a huge difference between setting up a new fly-by-night program that exists just to exist, versus actually investing in new educational opportunities. UC-Irvine Law School immediately stormed to a top-50 ranking from nothing when it was founded in 2006 because, unlike most other newly-established law schools, it boasted a level of public and private investment that showed it was serious about being a serious institution.

The problem we're experiencing is not actually one of bad minority students taking away the rightful spoils of White and/or Asian students. The problem is one of meritocracy and equalization paired with scarcity: an explosion in students applying for (and being qualified for) "elite" positions with no increase in the number of elite positions available.

Equality means that more and more people have at least nominal potential access to elite institutions, which means that it's harder for any one individual person to access these institutions, which results in a terrifying and never-ending arms race to become (and stay as) one of the elect few, which generates new inequalities in terms of who has access to the resources that allow them to win the arms race and who doesn't.

In a very basic way, it is true that "equality" is the problem here. In the old days, if you were an elite, you could be pretty confident your kids would stay elite so long as they were basically competent: with relatively few people who could or were allowed to compete for prestigious social positions, being "okay" generally was good enough. 

Once the doors are flung open, though, you're competing against everyone, and now it's off to the races. Today, we don't want to say that "only the children of elite university attendees should attend elite universities"; we want to say that every child should have an equal chance to join the Talented Tenth. But saying that means that, if you're in the top 10% right now, you're committing to the notion that your kid should only have a 10% chance of staying in your social strata, and that's a very unpleasant thought that only grows worse as the gap between the top 10% and everyone else increases. But unless your solution is "we should go back to reserving elite roles for the current incumbents", this is necessary feature of an egalitarian social sphere combined with extremely limited "elite" social roles. So if we're not going to accept going back to overt exclusion, we need to tackle the omnipresence and power of scarce "elite" roles. The only actual way to ease the sting of redistributing the pie is growing the pie. The actual, actual villain here is terrifying inequality -- the massive and growing gap between the power, influence, autonomy, and life chances of the elites versus everyone else, which makes so that not getting into Harvard feels like a death knell.

The only way to ease the sting of redistributing the pie is growing the pie. If you're panicking at the seemingly impossible task of seeing yourself or your child admitted to an elite institution, ending affirmative action will not help you. Nor, if we're being honest, will ending legacy admissions. The only thing that will make a difference is a true commitment to investing in education to such a degree that there is space for each of our outstanding youth to receive an outstanding university experience. There's no shortcut, no scapegoat that can substitute for that.

We are blessed as a nation right now to have surfeit of incredibly talented, hard-working, diligent young people who are eminently qualified to attend a great university and deserve to have that chance. The only thing standing in the way is our own willingness to pay for it.

Comparative Enrollment in College-Level Holocaust vs. Slavery Classes

In an otherwise unrelated post recounting the life of a third-rate North Carolina Senator, Erik Loomis wrote something that jumped out at me:

So the U.S. has plenty of reason to feel shame about its actions or lack thereof in caring about the impending Holocaust, not that the college students who sign up for Holocaust courses by the hundreds but won’t touch slavery or Native American courses want to hear about their own nation’s complicity.

Is that last part -- suggesting that current college students "sign up for Holocaust courses by the hundreds", in comparison to presumably thinner enrollments in classes on slavery or Native American history -- true? Is it backed by any data regarding comparative enrollment levels across those sorts of classes?

Intuitively, it seems wrong to me. But I don't have any data either, so my intuition is just that. If others have harder numbers they could share, I'd be appreciative.

F-ing Banned Roundup

 Ron DeSantis' botched campaign rollout includes the following hats.

What happened to the letter "F"? I have to assume that some parent filled out a form calling it obscene, and now it's banned in the state of, er, "Lorida".

Anyway, my browser needs clearing, so today you get a roundup.

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Texas Republicans set up a bespoke center at the University of Texas to promote a conservative ideological vision. Texas Republicans also look set to wreck tenure. Turns out the latter poses a recruitment problem for the former.

The Fourth Circuit upholds race-neutral admissions standards at Thomas Jefferson High School in Virginia against a challenge that they discriminate against Asian-American applicants. Ilya Somin objects here; I may have my own comments later.

Now that he's running, JTA runs down all the Jewish things you need to know about Ron DeSantis. He loves Israel. Also, his campaign against wokeness has resulted in banning books on the Holocaust, and neo-Nazis are flocking to the state.

Rep. Rashida Tlaib (D-MI) admits she "struggles" with the idea of removing Israeli settlers from the West Bank, suggests they have the right to stay where they are. I've said it before and I'll say it again; one need not like or even fully credit Tlaib's putative commitment to "one state with equal rights for all" to admit that it's clearly better than the many, many politicians whose position is "one state that does not even pretend to provide equal rights for all."

Louisiana Republicans are completely uninterested in hearing from the child rape victims whom they want to force to give birth.

Texas forces a woman with an unviable pregnancy to stay in the hospital until she gives birth to her stillborn fetus (or becomes sick enough to potentially die) by threatening her with criminal prosecution if she tries to leave.

If we don't raise the debt ceiling, it seems we have to triage who gets paid. I've seen many proposals on how to do this. But Kevin Drum raises the possibility that our treasury system isn't built to allow for any "choosing", and so we'd be forced to basically just arbitrarily pay whoever comes to the door first.

FIRE's Proposed Anti-DEI Legislation is an Academic Freedom Trainwreck

FIRE (the Foundation for Individual Rights and Expression -- formerly Foundation for Individual Rights in Education) is a controversial organization that works in a controversial area. By and large, though, I'm a FIRE defender -- I tend to think they get more right than wrong, and strive to be genuinely evenhanded in dealing with threats to academic freedom on campus.

But this makes it all the more striking to read their proposed model legislation targeting "DEI statements" at public universities. It is nothing short of an academic freedom trainwreck -- the sort of vague censorial tool that in most contexts FIRE would be blasting the alarm over. That it does not just endorse but drafted this disaster show is deeply worrisome and disconcerting.

I've written before trying to tease out the connection between DEI statements and (threats to) academic freedom before, which is far more complicated than groups like FIRE are letting on. The core problem is that while I absolutely agree that DEI statements can be used in abusive ways to create an ideological monoculture, it is actually very difficult to distinguish such statements from other arenas in which academic actors are asked to make normative assessments of their peers (for example, regarding teaching or scholarship) -- arenas which also are prone to ideological abuse. Almost inevitably, an "anti-DEI" rule that tries to have any teeth will put at risk basic practices of academic evaluation, and will do so regardless of any disclaimers to the contrary. This risk is only accentuated by the impossibly vague language that purports to distinguish licit versus illicit appraisals. And university bureaucrats who want to avoid potentially crippling financial liability (we'll get to that in a moment) are going to be very defensive regarding what is and is not permitted, inviting exactly the sort of administrative interference in academic affairs that FIRE purports to oppose.

When it comes to attempts to regulate DEI initiatives, my basic framework for evaluation is this. I assume that it cannot be the case that university actors are forbidden from caring about questions like "will the job candidate do a good job creating an equitable and inclusive environment for our diverse academic community" (if we are "forbidden from caring" about that, then the oppressive orthodoxy of the anti-DEI push is beyond dispute). So, assuming we're not "forbidden from caring", the question becomes "how can we, consistent with the anti-DEI regulation, permissibly elicit information to make an evaluation on that question?" And the subsidiary to that question is "what will the university or government bureaucrat in charge of compliance permit us to do to elicit information to make an evaluation on that question?" The former is a textual inquiry; the latter gets to the chilling effect of defensive bureaucracies seeking to avoid potentially millions in financial penalties. And for FIRE's anti-DEI legislation, the answers to these questions seem to be (a) I have no idea and (b) virtually nothing.

The core practice FIRE targets in its legislation are requirements that academic community members or job candidates "pledg[e] allegiance to or mak[e] a statement of personal support for or opposition to any political ideology or movement, including a pledge or statement regarding diversity, equity, inclusion, patriotism, or related topics." In addition, the law would forbid any institution from "request[ing] or requir[ing] any such pledge or statement from an applicant or faculty member" (notice that this would seemingly apply to interviews as well -- I could not ask a question that "requests" the candidate give a "statement" regarding their DEI-related practices).

Right from the outset, this is impossibly vague. Academia is, of course, beset with normative controversies. Some are very specific questions of disciplinary dispute ("Is originalism the best way to interpret the Constitution?"). But many are broad questions of academic mission. "Should university education be primarily vocational or academic in focus?" "What is the best way that professors can create a supportive learning environment for their students?" "What do you hope students will get out of your classes?"

These questions are contested, and often politically contested. For example, on university education as academic versus vocational, many conservatives contend that universities focus too heavily on hoity-toity theory and should instead concentrate on disciplines which prepare students for specific workplace jobs; liberals, by contrast, are more comfortable with the classic model of a liberal arts education where the project of learning and development is valuable even if it doesn't directly translate into a specific career arc. Are all of these questions qualifying "political ideologies or movements" that fall under the ambit of the law? If not, what conceptually distinguishes those questions from the seemingly-similar question "How do we render our institution equitable and inclusive to the diverse populations that we serve?" If the questions are identical in form, then the only basis for specifically banning DEI related questions is ideological hostility -- an imposition of state orthodoxy under the guise of pluralism.

One possible response is that the question is fine so long as it actually is a question, and does not dictate a particular answer. So if you ask "What is the best way that professors can create a supportive learning environment for their students," there are multiple ways to answer that question; the question does not require a "statement of personal support for or opposition to" any particular ideology, since the respondent is free to take any stance they like on the subject. By contrast, it would be problematic to ask job candidates to explain why the Socratic Method simply is the best way to create a supportive learning environment, since now they are being compelled to express support for a particular (pedagogical) ideological view, and we should be open to a diversity of positions on that subject.

Problem #1 with this response is that it's not clear that the model legislation permits even this, insofar as asking them to take any position on "supportive learning environments" arguably requires them to issue a "statement of personal support for" the practices they endorse, and opposition to the ones they reject. The law is vague as to whether it prohibits requiring candidates to endorse one favored view on an "ideology", or if it prohibits requiring candidates to simply present a view on the subject.  At least for DEI, the text points towards the latter -- the language prohibits requirements of statements "regarding" DEI or "related topics." So even an open-ended question which expressly invites multiple potential answers is forbidden if the subject matter of the question "relates" to DEI.

Problem #2 is that, assuming the model legislation does permit questions like "What is the best way that professors can create a supportive learning environment for their students" because they're open-ended and don't demand avowal of a particular ideological view, then it's unclear what distinguishes that sort of question from standard DEI statement questions. Contrary to popular belief, most DEI prompts do not take the form "explain why Derrick Bell is the greatest political theorist since Rousseau" (and if that sort of request is all that's being covered here, the law scarcely does anything at all). They are far more likely to be framed as something like "How do you propose making your institution equitable and inclusive to the diverse populations that we serve?" That question, too, can be answered in a multitude of ways, and so is not different in kind from all the other normative appraisal questions that are endemic to academic life (and which also can elicit strong views and significant political controversies).

In order to carve out a distinction for why DEI is different, one might make one of two arguments. The first is that although the DEI question is nominally open-ended, everyone knows that there is but one "right answer", and that answer is kowtowing to the politically-correct standards of the moment. To begin, I'm dubious that this is true at least in the strong form (there might be some answers generally thought of as wrong, but there is not only one answer accepted as right). I'm also skeptical that a complaint that is fundamentally about abusive-applications can justify prohibiting such questions as a class. I'll concede that it's probably true that a job candidate whose views on a given issue of concern are sharply at odds with their employers will be at a disadvantage in the process; I'll even concede that a flat unwillingness to even consider a contrary view is deeply malformed practice.  But that a candidate who answers a DEI question in a fashion at odds with prevailing sentiments may be at a comparative disadvantage to others cannot alone suffice to establish that the statements are being "abused" or that the statement's usage is tantamount to a desire to create a monoculture. The core risk -- dissidents are disadvantaged -- is always present for any normatively-laden assessment, it is not distinct to DEI. It exists for the academic job candidate whose views on pedagogy or research sharply diverge from the departmental line, it exists for that matter for the corporate job candidate whose views on business expansion break from the general consensus held by the executive leadership. Across the board, for any normatively-laden question, dissident candidates are probably at a disadvantage. If that fact is enough to justify banning an interview question, then we have a lot of questions to ban.

The second potential argument for why DEI questions are materially different is that the DEI question, while admitting multiple answers, still encodes certain values inside the question's very structure as presuppositions which an answer must tacitly endorse -- i.e., that values like "equity" and "inclusiveness" are in fact values the university should pursue. Someone who rejects the very premise will struggle to answer the question. But this "distinction" actually isn't one; similar presuppositions are likely embedded into most normative questions. "What is the best way that professors can create a supportive learning environment for their students," embeds a presupposition that professors should try to create a supportive learning environment; a candidate who rejects that premise (thinking, perhaps, that students learn best in a trial-by-fire academic Sparta) would likely be at disadvantage. Again, the objection here would cover far, far too much.

And at this point we do start to see FIRE unsuccessfully try to cabin its law's reach, with a provision contending that "Nothing in this Act prohibits an institution from considering, in good faith, a candidate's scholarship, teaching, or subject-matter expertise in their given academic field." Great verbiage; no idea how it works in practice. Suppose I, in good faith, believe that demonstrating capacity to work with and respond to issues of diversity, equity, and inclusion, is part of assessing a candidate's teaching (or, for that matter, scholarship or subject-matter expertise). Can I ask about that? I have no idea, but I suspect the answer is "no", notwithstanding this supposed carve-out. FIRE is I suspect embedding a normative presupposition of its own: that issues "related" to DEI never are in good faith connected to valid considerations of academic merit. But this position is very much a contested one -- I'd contest it -- and certainly should not be encoded into state law as legally-compulsory orthodoxy. Again, 90 times out of 100 FIRE would be screaming bloody murder about this sort of thing -- they are a victim of their own blindspots that they don't see how they're promoting exactly the sort of legislation they normally abhor.

And speaking of legislation -- we shouldn't conclude without talking about penalties for a moment. They have several different penalty formulations, but they all coalesce around proposing six-figure monetary fines "for each violation of the act." That's gigantic on its own, and certainly will counsel extreme defensiveness by university bureaucrats and lawyers regarding what faculty are and are not permitted to say in job interviews or other like forums on matters of DEI. The potential for censorial chilling is massive. But worse, the law does not tell us what counts as a single violation. A college posts hiring announcements across a dozen different departments, requesting application materials which are later determined to include Forbidden Questions. Is that one violation, or twelve? Probably twelve, meaning that a $300,000 fine just got converted into a $3.6 million fine. Or worse -- each of those job postings (based on what I know of the academic market) will likely get 250 applications. And since the structure of the act suggests that each individual applicant is separately injured by unlawful consideration of the Forbidden Questions -- well, 250 x 12 x $300,000 = Nine Hundred Million Dollars in potential liability. Given that exposure, you better believe that the university bureaucracy is going to be policing faculty hiring and promotion practices with a very fine-toothed comb to root out anything that could even possibly represent eliciting a statement "relating" to DEI as interpreted by whatever lickspittle Ron DeSantis has put in charge of oversight. And I guarantee you that the ensuing bureaucratic regime will be far more onerous, oppressive, and censorial than anything currently happening at the behest of DEI offices.

FIRE knows better than this. It knows that the strong arm of state regulation and compulsion is almost inevitably toxic to the free and open exchange of ideas on campus, and it knows that academic freedom means that it must be the academics themselves -- not bureaucratic meddlers, not state legislatures, not politically-appointed boards -- who get to decide how to appraise their peers and the requirements of their discipline. Some academics do not think that matters of DEI are germane to that assessment. Many others think they are quite germane, not because we demand all candidates adhere to the One True Path, but because I absolutely want to know that any potential member of my academic institution has at least thought critically and comprehensively on the subject of how to best create an equitable and inclusive environment for a diverse educational community. That interest of mine is no different than my wanting to know that they have thought on how to create supportive learning environments, or wanting to know that they have thought on how the important normative questions that are part of many research agendas. In terms of what conclusions they draw from that critical consideration, I'm willing to hear a wide range -- I don't have a single answer in mind that is the only acceptable conclusion. But it doesn't matter, because under FIRE's view if I try to elicit information on the wrong subjects I risk bankrupting the university. That can only have a censorial and chilling effect.

It is not possible to declare the topic of DEI a Legally Forbidden Question without doing catastrophic damage to academic freedom, and the manner in which this law proposes to enforce its prohibitions will inevitably generate a nightmarish cavalcade of bureaucratic censorship. To be blunt: Academic departments are absolutely entitled, as part of their discretion to determine how to assess disciplinary, pedagogical, or service-based standards, to decide how and to what extent questions relating to DEI are germane to their evaluative appraisals. I do not doubt there are departments that will exercise their discretion in a fashion that I would not approve of; I do not doubt that are departments that will exercise it ways I find impossibly narrow-minded and abusive. It does not matter: any state legislation which limits that fundamental prerogative of academic independence and faculty self-governance is a limit on academic freedom -- full stop. Problems of abuse, to the extent they exist, are not validly delegated to state legislatures, and FIRE absolutely knows better than to argue otherwise.

This legislation is a stain on FIRE's reputation. They should withdraw it, and they should reflect on just what it is about this issue that caused them to so flagrantly abandon their normal principles regarding academic freedom. That an organization that has done so much to fight for academic freedom is poised to usher in this sort of censorial dystopia is fiendish irony. One hopes they backtrack before it becomes reality.