Tuesday Talk*: If It’s About The Topic, Is it Discriminatory?

In a combination of two rather lengthy posts, Eugene Volokh provides the background and some discussion of Harvard’s Kennedy School of Government professor Marshall Ganz rejecting a project for his class, “Organizing: People, Power, Change.”  Three Israeli students proposed their project including a description of Israel as a “jewish Democracy.” Ganz said no.

When the Parties met on February 27, 2023, Professor Ganz told the Students they could not describe Israel as a “liberal-Jewish democracy” because Israel is not democratic.
In a March 2, 2023 email, Professor Ganz wrote that the Students’ statement of purpose was “not acceptable going forward,” and he instructed them to revise it. In a later email that night, Professor Ganz wrote, “I cannot permit [a debate of the question of ‘Jewish democracy’] to claim the very limited time and space in a class in which 116 students are enrolled to learn to practice organizing. Please find a way to describe your organizing project in terms that are respectful of others in the class.” {There is no evidence that the Students intended to debate whether Israel is a democracy in the Jewish homeland. According to Professor Ganz, certain teaching fellows sought to debate this issue, which Professor Ganz rightfully stopped.}
When the Students told Professor Ganz that they would not change their purpose, he told them they would be responsible for the “consequences” of their decision, and later clarified that by consequences, he meant “fulfillment of course requirements.”

A complete resulted in an investigation, which produced a report from an outside law firm concluding that Prof. Ganz violated the students’ free speech and engaged in “discrimination and harassment” based on national origin, ethnicity, and ancestry, which the report treated as embodying federal rules developed under Title VI of the Civil Rights Act of 1964 by rejecting the class project and threatening consequences if the students didn’t comply with his demand for change.

The report concluded that Ganz’s actions “treated the Students differently on the basis of their Israeli national origin and Jewish ethnicity and ancestry,” by “instruct[ing] the Students not to use as a purpose anything that describes Israel as a ‘Jewish democracy,’ which he did only after complaints by Muslim and Arab students.” Ganz had replied that he was focused solely on the topic, regardless of the ethnicity of the students, and would have likewise rejected a proposal from non-Jews who wanted to describe Israel as a “Jewish democracy.”

Eugene contends that characterizing Ganz’s actions as a Title VI violation goes too far.

The report never found that Ganz targeted the students because they were Jewish or Israeli, and indeed it seems unlikely to me. Ganz’s statement that

he was focused solely on the topic, regardless of the ethnicity of the students, and would have likewise rejected a proposal from non-Jews who wanted to describe Israel as a “Jewish democracy”

strikes me as quite credible: It appears that he, and the Muslim or Middle Eastern students whom he was trying to placate, were indeed concerned about the pro-Israel message rather than the identities of the messengers.

Eugene uses an analogy of an employer refusing to allow employees to wear pro-Hamas messages, regardless of their race or ethnicity.

There’s no reason to think the employer cares about the identity of the speaker (absent some specific evidence that the opposition to the message or the concern about disruption is a pretext for going after Muslims or Palestinians); he just doesn’t want what he sees as an evil or incendiary message.

Does the analogy hold in an educational setting (forget that it’s Harvard, and consider whether it would apply in a good school), where academic freedom and free inquiry are supposed to prevail? But then, the finding of discrimination was per Title VI, not First Amendment or academic freedom, and so analogizing it to Title VII employment discrimination makes more sense.

Clearly, Ganz sided against Israel and the position these three students sought to pursue. Good thing, as academics keep insisting, that they aren’t indoctrinating students, but I digress. Is this discrimination on the basis of race or ethnicity, or is it just a prof controlling his classroom topic in accordance with his academic freedom to reject characterizations like Israel being a Jewish democracy with which he disagrees? Is this discrimination on the basis of being Jewish or Israeli, or is it viewpoint discrimination which falls outside Title VI?

*Tuesday Talk rules apply, within reason.