NYU Law Erupts In Controversy Over Alleged Antisemitism

The law school is investigating harassment complaints in the wake of an incendiary statement.

NYU School of Law (photo by David Lat).

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It’s not just Yale. Controversies over free speech have arisen at law schools across the country, from Emory to the University of Illinois-Chicago to UC Hastings. And now we can add NYU Law School to the list, after an uproar over a statement issued by a pro-Palestinian student group that some Jewish students have alleged to be antisemitic.

Here’s the background, from the indefatigable Aaron Sibarium over at the Washington Free Beacon:

The latest episode began on April 7 when Law Students for Israel (“LSFI”) circulated an email to the NYU Law student body.

“The Middle East is big enough for all its indigenous peoples to enjoy self-determination, security, and prosperity,” the group said. “Do not give credence to those, including in our Law School, who say otherwise.”

LSFI’s email, which opened by condemning a series of recent terror attacks in Israel that have killed more than a dozen people, contained additional comments. It declared that the signatories “stand with Israel during this difficult time and defend its right to protect itself from those who wish it harm”; stated that “[f]ew countries have faced as much violence, hatred, and delegitimization as the State of Israel”; and noted that “Israel has long enjoyed bipartisan support in the United States because, despite its many security concerns, it has not wavered in its commitment to human rights and democracy.”

This email predictably drew a reply from the NYU chapter of Law Students for Justice in Palestine (“LSJP”):

Two hours later, Students for Justice in Palestine issued a 1,500-word response to the email, arguing that it flipped “the realities of aggressor and victim on its head.”

“Framing is everything,” Students for Justice in Palestine said. “It is imperative to emphasize that the loss of any lives is a direct result of the Israeli occupation, not the resistance of those who are occupied.”

The statement went on to berate the “Islamophobic, Zionist-funded U.S. and Western media” for presenting the violence as “a ‘conflict’ with two sides.”

These are just excerpts. The complete LSJP statement has more, including condemnation of “the orientalist, Islamophobic idea that Azkenazi [sic] Jewish whiteness is fundamentally superior to Palestinian lives” and, perhaps most notably, a complaint about “the Zionist grip on the media.”

The LSJP statement was followed by dozens of emails to the list-serv, some criticizing the statement and some defending it—and some of the defenses gave rise to further accusations of antisemitism and offensiveness. For example, one student defending the LSJP statement wrote that “[t]he Palestinian right to resist occupation is not only moral and justified, but also legal under international law,” which other students criticized as endorsing or expressing indifference to the recent killings of Israeli citizens.

When a law school controversy erupts, groups quickly take sides—and the alignments tend to be predictable. Affinity groups tend to line up with the left, and the left tends to be pro-Palestine in the Israel-Palestine conflict. So just as affinity groups quickly rallied around the Yale Black Law Students Association’s condemnation of the trap-house email last fall, NYU law student organizations rushed to support the LSJP statement, as noted by the Free Beacon:

Over the next 24 hours, 11 student groups wrote to the law school’s all-student list-serv to express their support for the statement: the Black Allied Law Students Association, the Middle Eastern Law Students Association, the Muslim Law Students Association, the South Asian Law Students Association, the Disability Allied Law Students Association, the National Lawyers Guild, the Women of Color Collective, the Coalition on Law & Representation, the NYU Review of Law and Social Change, and Ending the Prison Industrial Complex.

Over at the Volokh Conspiracy, Professor David Bernstein parsed the LSJP statement for antisemitism. After acknowledging that criticism of Israel isn't necessarily antisemitic and that borderline cases will arise, he wrote:

This is not one of those cases. First, the objectionable language noted above is not criticism of Israel, it's criticism of the “Zionist” media in the US and the West.

Second, the clearest, most obvious form of antisemitism that tries to obscure itself behind antizionism is when one can substitute the word “Zionist” for the word “Jew,” and one is left with an obvious, longstanding antisemitic trope.

The SJP statement falls exactly into that category. Anyone who knows anything about the modern history of antisemitism knows that Jewish control of the media is about as clear an antisemitic trope as there is. “Controlling the media” is even listed as one of the most prominent “antisemitic canards” in Wikipedia's entry on that topic.¹

Expressing concerns like those of Professor Bernstein, a number of students complained to the list-serv about antisemitism in the LSJP statement. They received some thoughtful responses, as well as some less-than-thoughtful ones, like this one: “Quiet, you baby! If this is your notion of hate speech, you need to grow up. Go chat with [Dean Trevor] Morrison about it.”

As it turns out, students did complain to Dean Morrison and the NYU Law administration, in both individual complaints and an open letter signed by more than 100 students. The letter noted that some of the students who have sent “hateful, alienating, and borderline antisemitic statements” to the list-serv “are the recipients of prestigious scholarships awarded to students who are dedicated to civil rights and the promotion of free speech.” The letter went on to claim that “[a]bsent clarification to the contrary, NYU Law, through its chosen representatives, has made clear to the broader NYU community that it is commendable—or, at the very least, acceptable—to advocate for violent resistance against Israelis.”

I also heard from NYU law students about the LSJP statement. Here’s what one student wrote to me:

At one of the nation’s top law schools, one particularly noted for its commitment to social justice, students are freely endorsing the murder of civilians.

LSJP’s statement invoked antisemitic tropes (e.g., “the Zionist grip on the media”) and defined Zionism itself as an “inherently white supremacist” ideology, using rhetoric designed to silence and impeach dissent. Needless to say, there are plenty of legitimate criticisms to make of the Israeli government. However, LSJP’s statement was riddled with factual and legal (not to mention logical) inaccuracies, and yet still received unequivocal support from several (unrelated) student affinity groups and law journals clamoring to express their “solidarity.”

From a second student’s message to me:

I have no bone to pick in this conversation or malice towards students communicating their thoughts on this thread, but as a Jewish student who has quite nuanced views on the Israeli-Palestinian conflict, it feels that some of the comments on this thread are verging on antisemitism as this letter was directly sent on a law school thread in response to the murder of Israeli civilians. I find the responses by many of the students below to Jewish students to be caustic and not the type of debate that leads to productive dialogue. Some of the comments are borderline antisemitic, such as the zionist “grip on the Western media,” "Ashkenazi Jewish whiteness,” and equating the attack on Israeli civilians to a “lethal outbreak of the flu.”²

Dean Morrison responded to the complaints as follows (and also agreed to meet with the board of the Jewish Law Students Association):

I’m glad that Dean Morrison reiterated NYU Law’s “commit[ment] to discourse, debate, and dissent, even though the vigorous exchange of ideas may include statements that some find challenging, offensive, or painful.” And I’m glad that he emphasized that individual students or student groups “do not speak for the Law School”—which should be obvious, but bears repeating.

Statements by particular students or student groups—even if those students have prominent scholarships from the law school, and even if the groups are officially recognized by the law school—are in no way statements by the law school. And it’s hard to imagine how they could be, given how often these statements conflict. In this case, for example, there’s no way to impute to NYU Law School the views of both LSFI and LSJP, even if both are official law school groups.

This is also why I disagree with the claim that anytime a controversial speaker comes to a law school, the law school is somehow “legitimizing” or “platforming” that speaker or their views. When it comes to the most contentious issues of the day, a law school should be a neutral forum; its role is not to take a side, but to create an environment in which all sides can articulate their views (without interference).

Dean Morrison’s statement acknowledges that the law school has received “reports,” plural, of violations of NYU’s non-discrimination and anti-harassment policy. As it turns out, NYU as a university has had issues in the past with antisemitism—which might make it especially careful in dealing with such complaints today, per Aaron Sibarium of the Free Beacon:

NYU may have no choice but to punish these students [involved with the LSJP statement] because the university in 2020 agreed to adopt a zero-tolerance policy toward antisemitism as part of a settlement with the Department of Education’s civil rights office, which was investigating a string of antisemitic incidents at the elite school. The agreement obligates NYU to “take all necessary actions, including pursuant to its student discipline process,” to address antisemitism on campus. Should the Biden administration decide to enforce the terms of that agreement, inaction could jeopardize NYU’s federal funding under Title VI of the Civil Rights Act.

The law school told students on Tuesday that it was investigating the harassment complaints "as required by our policies." But some students doubt the investigation will amount to much.

“Blatantly antisemitic remarks can be made in public with zero consequences at this law school,” said Gary Dreyer, the president of NYU’s Law Students for Israel. “This has gone on for years, and it has only gotten worse.”

What do I think of all this? My view on this controversy is similar to my view on Trap House-gate at Yale Law School.

If Law Student A is offended by something Law Student B writes in an email, A should take it up directly with B. There are better and worse ways of doing this—I prefer privately explaining, over coffee or beer, why you found the email offensive, as opposed to calling someone out or shaming them publicly—but as long as it’s student-to-student, I don’t have a problem with it. The appropriate response to offensive speech is more speech, which can explain why the original email was offensive, identify the flaws in the email’s reasoning, or condemn it in the strongest terms.

What I don’t support is running to the law school administration to complain that the offending communication constitutes “discrimination” or “harassment.” The bar for discrimination or harassment is (justifiably) very high, and these behaviors are generally targeted at specific students (e.g., A sending B a personal email containing a racial slur or threat of violence). Sending around a school-wide email offering an opinion on a political issue like the Israel-Palestine conflict, even a controversial or strongly worded opinion, does not rise to the level of “discrimination” or “harassment.”³

Do I understand why some students found the LSJP statement to be offensive? Absolutely—see Professor Bernstein’s analysis—and speaking for myself, I certainly find the email troubling. But as Dean Morrison explained, “NYU Law is committed to free discourse, debate, and dissent, even though the vigorous exchange of ideas may include statements that some find challenging, offensive, or painful.”

What can we take away from all these free-speech controversies at top law schools? At the risk of being criticized for false balance or bothsidesism, I think they show that law students on both the right and the left need to develop thicker skins. If you want to have any hope of successfully representing a client at a trial or in a negotiation, you need to be able to hear out opinions you strongly disagree with—and even find offensive—without running off to complain to the judge or state bar.

Listening to views you disagree with is an essential part of lawyering. And life.

UPDATE (11:48 a.m.): To give you a sense of the list-serv discussion, I have posted anonymized student emails on this Twitter thread.

UPDATE (4/21/2022, 12:35 p.m.): Dean Trevor Morrison has issued a more detailed and substantive statement about the controversy, in a school-wide email.

UPDATE (12/21/2022, 8:47 a.m.): References to “anti-Semitism” and “anti-Semitic” have been changed throughout this post to “antisemitism” and “antisemitic.” For explanation, see the International Holocaust Remembrance Alliance, the Anti-Defamation League, and BuzzFeed News, among other sources.

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1. In fairness to LSJP, it should be noted that three Jewish students who are on its board wrote to the list-serv to clarify that they drew a distinction between Zionism, which they view as “a racist, imperialist, white supremacist ideology,” and Judaism, which they argued “asks us to act in solidarity with the Palestinian struggle for liberation.” Conceding that some of their language “is in line with antisemitic tropes,” they stressed that they deliberately condemned “Zionism” rather than “Judaism”:

“Zionism is not Judaism, and equating the two is antisemitic. We are law students who very well understand the impact of language, and so chose our words very carefully in the LSJP letter sent to [the list-serv]. Equating Zionism with Judaism is antisemitic, and we intentionally wanted to draw attention to the fact that Zionism does, in fact, intentionally and strategically use U.S. and Western media as propaganda to promulgate the Zionist exceptionalist myth. While we acknowledge the concern that this language is in line with antisemitic tropes used to demonize our community in the past, we were intentional in working to draw attention to the role Zionism specifically plays in the media–NOT Judaism.”

2. The “lethal outbreak of the flu” comment came from a student criticizing the suggestion that LSJP should specifically condemn the recent attacks on Israeli civilians, as opposed to the statement’s more general observation that “[t]he loss of Palestinian and Israeli lives as a result of the Israeli occupation is a tragedy.” That student wrote as follows:

“And what would the semantic value of LSJP condemning these attacks be? You don't condemn an earthquake or a lethal outbreak of flu; you condemn when there is a moral actor whom you perceive to have caused the tragedy. In this case, LSJP has been explicit: the moral duty lies with the occupying state of Israel, because it is first and foremost in Israel’s power to end the conditions that cause violence.”

3. Compare this to what gave rise to NYU’s settlement with the Department of Education, which included an alleged assault on an individual student that gave rise to criminal charges. I acknowledge that gray areas will exist when it comes to defining “discrimination” or “harassment,” but I don’t think the LSJP statement comes close to the line.