Phi Beta Cons

A Slow but Steady Road to Speech Suppression

The Steven Salaita affair has raised interesting questions about contract, freedom of expression, academic freedom (not the same, of course), and the role of trustees.

And something else: the federal Department of Education can decide whether speech is against the law or not.

I learned this from the Chronicle of Higher Education. In his latest report on the dispute over whether the University of Illinois was right to rescind Salaita’s job offer, Peter Schmidt writes:

The U.S. Department of Education’s Office for Civil Rights has yet to issue clear guidance on when criticism of Israel amounts to anti-Semitism that violates federal antidiscrimination laws.

So the Department of Education is curbing speech now? Schmidt links to an article that he wrote in 2010 about the Department of Education’s consideration of what constitutes anti-Semitism and whether anti-Semitism is discrimination under the law. Schmidt wrote then:

Title VI of the Civil Rights Act of 1964 authorizes the Education Department to deny federal funds to educational institutions found to discriminate based on race, color, or national origin.

In 1964, did Congress intend spoken words to mean discrimination on a level to deny federal funds? I doubt it, but apparently the federal government sees it that way today. The threat to curb speech came in a 2010 “Dear Colleague” letter about bullying.

And, by the way, since the Civil Rights Act of 1964 does not mention religion, the Department of Education apparently has to split hairs when it comes to anti-Semitism. To quality (that is, to qualify for losing federal funds) the discrimination must be based on the “actual or perceived shared ancestry or ethnic identity as Jews (rather than on the students’ religious practices).”

So that gets us back to whether anti-Israeli speech can be deemed anti-Semitic speech–and that gets back to whether opinionated speech is against the law and why the Department of Education is the one who decides.

Jane S. Shaw — Jane S. Shaw retired as president of the John W. Pope Center for Higher Education Policy in 2015. Before joining the Pope Center in 2006, Shaw spent 22 years in ...

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