For the past few years, a group of Jewish students have sought to sue administrators at San Francisco State University, alleging that their college has tolerated and buttressed a pervasively hostile anti-Semitic atmosphere. The students claim they have been subjected to anti-Semitic slurs and taunts, and had their campus events disrupted and sabotaged with little to no pushback from campus leadership. Among their more striking pieces of evidence was the deliberate exclusion—conceded by university officials to have been “improper”—of the campus Hillel chapter from a university civil rights information fair.
The lawsuit caught the eye of Open Hillel, a left-wing group which seeks to overturn Hillel International’s “Standards of Partnership,” a set of guidelines which restrict Hillel’s ability to work with harsh critics of Israel like the BDS movement. At the close of May, Open Hillel filed a brief in support of SFSU and against the aggrieved Jewish students. Their argument was striking: the deliberate targeting of Hillel for exclusion from campus life, they contended, should not even be seen as potential evidence plausibly suggesting anti-Semitism. This is a deeply dangerous position, regardless of the merits of the SFSU students’ specific suit. Open Hillel’s stance is noteworthy and troubling for two reasons. First, because it marks a dramatic escalation of the group’s adversarial posture towards the broader Jewish community, and second, because the legal principle they advance would, if adopted, devastate huge swaths of anti-discrimination law.
To be clear, the problem is not that Open Hillel is critical of Hillel and its regulations. The problem is that Open Hillel seems indifferent to how excluding Hillel from university activities would impact the many Jews for whom Hillel occupies a central role in campus Jewish life. It is entirely reasonable for these Jews to perceive efforts to target Hillel for isolation and expulsion as a denial of their equal standing on campus.
There’s no conceptual barrier to harboring sharply critical views of Hillel and simultaneously recognizing its importance and centrality to Jewish life and inclusion on American universities. Indeed, that is precisely why Hillel merits our attention and criticism. I, for example, have vigorously protested against Hillel’s unaccountable organizational structure and publicly urged that Hillel democratize itself along the model of the British Union of Jewish Students. My view is that Hillel has, to say the least, grossly mismanaged the application of its partnership guidelines and that these failures are directly attributable to a failure of democratic accountability to its own students. Nonetheless, I also recognize Hillel’s standing at the center of campus Jewish life and know full well what it means when campus actors try to excise it from the university community. That’s because my issues with Hillel, as important as they are, are not the only stakes on the table. No matter what my objections to Hillel are, I am not licensed to simply burn it to the ground—consequences for campus Jews be damned.
Open Hillel could have taken the same approach. It could have very easily asserted that while debates over Hillel International’s policies are both desirous and legitimate, debates over whether the primary space for Jewish communal life on campus should be expunged are not. Such a position would have been easily harmonized with Open Hillel’s putative commitments to pluralism and open engagement. After all, how can Hillel be “open” to a campus that refuses to allow it in the door?
Instead, Open Hillel actively chose to actively align itself with groups who seek to drive Hillel from campus outright. It is not just at SFSU either—from Cal Poly to Stony Brook to the University of Ottawa, campus actors have grown increasingly emboldened in asserting that Hillel’s association with Israel necessitates that it be isolated and if possible extirpated from the university setting entirely. This has historical precedent as well: it chillingly echoes the concerted campaign in the 1970s and 80s to ban Jewish Societies (“JSocs”) from British campuses on account of their alleged “intrinsic racism.” In no case have such efforts ever failed to levy a toxic cloud over Jewish communities on campus.
Open Hillel’s view is that these attempts to shut out and shut down Hillel cannot be considered anti-Semitism because, well, #NotAllJews are represented by Hillel. But most Jews have little trouble understanding how sweeping exclusion of preeminent Jewish institutions from campus life functions as a form of anti-Semitism even if a few stray corners here and there emerge unscathed. That Open Hillel either doesn’t realize this or, worse, doesn’t care about it suggests its raw antipathy towards the broader establishment structure of contemporary Jewish life runs deeper than many realized. It’s unsurprising, then, that upon reading the brief even one of Open Hillel’s own academic advisory board members ruefully concluded that the organization had “jumped the shark.” It has moved from a group seeking to reform Hillel to one that has all but declared war on it—and if most campus Jews are caught in the cross-fire, so be it.
All of this is intramural to debates occurring inside the Jewish community. But there’s something to be said about Open Hillel’s legal argument as well, and what it signifies for anti-discrimination law more broadly. “Legal,” to be fair, is being used here somewhat advisedly: Open Hillel’s brief cites precisely zero cases, statutes, or regulations (it is more an outlet for a general airing of grievances against Hillel International than it is a cohesive legal argument). Still, Open Hillel’s claim is relatively straightforward. It asserts that Hillel, because of the standards of partnership, does not “represent all Jews.” Consequently, because Hillel does not enjoy the uniform support and backing of the entire Jewish community, acts that deliberately target it for exclusion cannot serve as evidence of anti-Semitism.
The brief cites no case law in support of this view (since it cites no case law, period)—and thank God for that. The principle that for an act to constitute unlawful discrimination against a protected group, it must target the entire group uniformly and without exception has no precedential backing and would represent a catastrophic narrowing of the borders of anti-discrimination law. Under Open Hillel’s view, the recent vandalism of the Hillel at the University of Oregon cannot be thought of as anti-Semitic—after all, not all Jews endorse Hillel (and some, one suspects, probably endorse the message scrawled on their signage: “free Palestine you fucks”). Or take it a step further: an Indiana synagogue was vandalized with Nazi graffiti, but there are plenty of Jews who do not identify with a Conservative shul (where the Rosh Hashana sermon was devoted to Israel advocacy, no less!)—under Open Hillel’s proposed view of anti-discrimination law, that failure to meet an impossible demand of uniformity fatally undermines the inference of anti-Semitism.
There is a willful blindness here, the sort that can keep a straight face while asserting that Hillel’s exclusion from campus life has nothing to do with Jewish exclusion (as if Hillel’s Jewish character was a random coincidence ungermane to the controversy); or that can pretend not to understand the difference between sharp critique of Hillel’s policies versus seeking to expunge it from campus life outright. Most of us know better: we understand there are forms of anti-Semitism that attack some Jews while affirming others, just as there are forms of misogyny that strike at some women while valorizing others. That many Jews would perceive the targeting of Hillel for excommunication from university life as an act of anti-Semitic exclusion is neither mysterious nor idiosyncratic. Nor does require any imaginative leap to process how such behavior might significantly hinder the full and equal standing of Jews on campus.
But even if Open Hillel doesn’t care about how its position constricts anti-discrimination protections for Jews, it might pause to consider how its proposed standard might burden other groups. After all, it is difficult to imagine any affinity organization satisfying the standard of uniformity Open Hillel demands. There is no African-American organization that is entirely politically inclusive of every Black man and woman, no women’s organization that fully encompasses all persons who identify as female, or Islamic group that completely embraces every Muslim. Yet it should be beyond obvious that racist, or sexist, or Islamophobic discrimination often will target such groups as their vector, and just as often will find their few favored Blacks, or women, or Muslims to serve as their shields. The existence of Ben Carson does not disprove the racism of the Trump administration.
On the internet, we are used to dueling hypocrisies around anti-Semitism versus other forms of racism: people who demand a broad definition of the former but a narrow one of the latter or vice versa. Online, these debates lack stakes, and so polemicists can afford to be cavalier. But in law, precedents carry. A ruling that relies on the notion that excluding Hillel cannot be thought of as anti-Semitic because not Hillel is not organizationally coterminous with the entire Jewish community sets a precedent that will apply with just as much force to racial minorities, to religious outgroups, to women, and to the LGBT community—groups which already are seeing the promised protections of anti-discrimination law collapse around them. It cannot and will not be a ticket good for the Jewish ride only.
And in particular, the argument that discrimination cannot exist if some members of the outgroup are among the included, or not among the excluded, has legs. Its attraction to the reactionary right should be obvious: few voting restrictions in North Carolina or profiling practices in Arizona or gerrymanders in Wisconsin target all or only minorities (much less are opposed by each and every member of those communities). If that banal fact suffices to dispense with a discrimination claim, then there isn’t much left to anti-discrimination law—which for some is precisely the point. Yet worrisomely, the presiding judge in the SFSU litigation expressed sympathy for exactly this view. In an earlier iteration of the case, he suggested that “if there was another Jewish-identified group [“Jews for Peace”] participating at the Fair, plaintiffs would face a potentially insurmountable burden to show that Hillel was excluded because of Jewish race, ethnicity, or religion.”
For now, at least, this is absolutely not the law: as far back as 1982 the Supreme Court recognized the obvious point that there is no “license to discriminate against some … on the basis of [protected class membership] merely because [one] favorably treats other members of the … group,” and hence the mere fact that not every member of the outgroup was excluded from a given position does not suffice to dispose of a discrimination claim. Nonetheless, progressive legal scholars have long worried that the patina of inclusion to a favored few will be taken to be dispositive evidence against an inference of discrimination. In the world of Trump v. Hawaii, where five members of the Supreme Court ignored overwhelming evidence of discriminatory intent because, after all, Trump’s Muslim ban was facially neutral and “covers just 8% of the world’s Muslim population,” it is not wrong to be concerned that these reactionary limits on anti-discrimination might have new life.
Years ago, the great philosopher Bernard Williams observed that even the most vicious bigotry rarely stands unadorned as a pure hatred of the group-qua-the-group. There are almost always reasons proposed for the bigotry, and there are almost always exceptions. If anti-discrimination law requires a perfect match-up where the discriminatory act perfectly and without mediation targets the entirety of the covered group, then we might as well not have anti-discrimination law at all. In backing the position that campus Hillels can be targeted for exclusion on campus without raising even an inference of anti-Semitism, Open Hillel has done more than escalate its campaign against establishment Jewish life. It has endorsed the reactionary diminishment of the anti-discrimination protections that many other minority groups, now more than ever, depend on. When Open Hillel filed its brief, it either did not consider that possibility—or it did. It’s hard to say which would be more damning.
David Schraub is Lecturer in Law at the University of California-Berkeley. He blogs at The Debate Link and can be followed on Twitter @schraubd.
