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NFA member offers support for amendment to BOR policy

09 Jun 2024 8:25 AM | State Board (Administrator)

The following submission is from NFA member and UNLV Professor Gregory Brown and does not necessarily reflect the views of the NFA State Board.

Dear colleagues and friends,

I'm writing you on a matter of some importance and which I believe is important to discuss, so I hope you will indulge me to read this letter. I am writing to explain the intent, language, and effect of the amendment approved by the Board of Regents to  the above-numbered section of the NHSE Code, which serves as our faculty handbook. I am writing you about this, because you signed an open letter to the Board opposing this change, and since it has now passed, and since I advocated strongly for it, I feel you are entitled to an explanation of why and more importantly why I believe you need not feel concerned that your academic freedom or free speech will be encroached and why, perhaps, you may view the practical effect of this with sympathy and support. 

Some of you I know very well and some I do not, so I feel I want to explain my own positionality to start. I am a 26-year faculty member at UNLV, an historian of European and World history, a former head of the chapter and state level Nevada Faculty Alliance, a former faculty Senate chair, and formerly Vice Provost for Faculty and Policy. I am someone with quite a solid track record in defense of academic freedom, shared governance and faculty rights in general. Ive testified in federal court on behalf of faculty tenure rights, and I served on an AAUP national committee on the defense of tenure rights and academic freedom. I am also a Jewish-American and one of the founders of the recently recognized Jewish Faculty and Staff group, which is part of the Office of Diversity's affinity group program and as such a member of the Presidential Advisory Council's subcommittee on diversity. I hope therefore that you will accept my comments below in good faith and based on a decent amount of experience working in these issues. 

I have also over the past 8 months been an advisor to leaders of the campus's small Jewish student population, which is only several dozen students, and which includes a number of Israeli students (as well as Israeli faculty and staff). I have been consulted by them since last October, when some of them found themselves, in the aftermath of the Hamas attacks on Israel, subject to hostile treatment and asked in some cases in classroom environments to explain aspects of Israeli policy and history for which they should not have any particular knowledge or responsibility. In other cases, they found themselves ostracized within student life, excluded from certain student clubs, and in a few cases subject to minor but clearly worrisome attacks on their person and property. (This was in the days while the attack was still going on, long before any armed response from Israel by the way.) As the weeks went by, these students felt -- whether rightly or wrongly -- targeted on campus, through social media and through rhetoric that they considered to be aggressive, hostile and in some cases violent. In no case did I or anyone seek or advocate for anyone to be punished for such actions (with the exception, of course, of the incident in which a visiting scientist had his lecture shut down, in clear violation of university free speech policies.) In many cases, I advised students to understand that hostile language on social media is something they can ignore, or in other cases, explained to them the history and significance of slogans or symbols that they considered hostile. In all cases, I urged them to do three things -- to avoid confrontation (including to stay home on days of large demonstrations by groups which chose to engage in rhetoric they found offensive), to report any actual physical or emotional harm done to them or negative impact they may have experienced on their education and thirdly and most importantly, to engage in dialog, to listen and to share their views non-confrontationally. I have regularly had lunch with these students, met with them privately, received personal communications, and generally did what any faculty member would do, which is to  help them understand the world around them.

I do think that among the individuals who spoke on the matter at hand, I am the only one to have had such close relationships and to provide support to those students.

As you may know, the group of faculty with whom I have been working held a few open conversations, on topics such as Jewish Identity at UNLV, the prospect of Jewish studies curriculum at UNLV, on interfaith dialog ("How to be a peacemaker"), and on the occasion of Israeli independence day, a visiting speaker who is a senior Israeli reporter who had been reporting from Israel and Gaza, on the current conditions there as he saw them. Many of these students attended, participated, and learned. These have been open events, announced to the campus, and to which all students and faculty have been welcome.

I have also attended events organized by other groups, including the Jewish Law School student association, and events organized by students engaged in advocacy for a cease fire and on the question of genocide (both very well run events organized by students whom I commended and with whom I engaged in quite detailed and thoughtful discussion). I have engaged in discussion with students of very different backgrounds and points of view -- or often no point of view at all -- in the first year course on the history of Zionism that I taught last spring. 

Finally I have had many meetings and conversations with the office of Student Diversity Programs, the Office of Diversity, the Provost´s office, the President, the University Police, and community partners to encourage de-escalation of rhetoric, and try to encourage educational initiatives. 

I therefore feel that my engagement on this question is not merely on the particular issue of the Code amendment.   

The proposal that was put forth, debated and eventually approved by the Regents on Friday was discussed in the petition you signed as an action to "adopt" a particular definition of antisemitism. I do think that particular definition is defensible, and I did write a memo in support of it, which I will take the liberty of attaching here. But I do not think the issue is properly represented as an adoption of any particular definition, because the measure proposed was to adopt the provisions of federal civil rights law adopted by the Department of Education's Office of Civil Rights, with respect to Title VI of the Civil Rights Act. That action, by executive order of the president, does refer to -- as does the Code amendment approved by the Board -- the most widely adopted definition, which is referred to commonly (though not entirely accurately) as the "International Holocaust Remembrance Alliance" (IHRA) definition. And for that reason, the compliance with civil rights regulations as set forth in the US DOE OCR "Dear Colleague Letter" of May 7. 2024, does refer to that definition as one basis for determining discriminatory intent. But it does not criminalize criticism of Israel -- this is stated plainly in both the definition itself and in the Code amendment -- and does not in any way make it possible for a student to be expelled or a faculty member to be terminated based on criticism of Israel. Indeed, the point I wish to make to you is that the idea that this is fundamentally about Israel at all is not accurate.

As the text of the amendment itself, which I will past below and attach, it was  a measure that was brought forth, defended and eventually approved not to change or adopt a particular definition of antisemitism -- but to add the language of the Office of Civil Rights -- to the Code in the paragraph that states the NSHE principles of anti-discrimination. 

That article begins with the following sentence: 

"The Nevada System of Higher Education is guided by the principle that there shall be no difference in the treatment of persons because of race, religion, color, age, sex (including a pregnancy related condition), sexual orientation, military status or military obligations, disability (whether actual or perceived by others to have a disability including veterans with service-connected disabilities, or national origin, and that equal opportunity and access to facilities shall be available to all."

The amendment then inserts this sentence (which I reproduce in its entirety)
"This extends to individuals who experience discrimination (including antisemitism* ) based on their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity "

This language comes directly from US Dept of Ed Office of Civil Rights title VI regulations. The only element of the above that does not come directly from the OCR is the insertion of "(including antisemitism)" though that is clearly a part of the meaning of the OCR guidance. (The OCR guidance, using the above-cited language, also includes specific reference to Muslims and Palestinians.)

So the opposition is to the inclusion of a basic statement of civil rights already established under federal law. The letter that you signed wondered why this language was being inserted now, seemingly to the exclusion of discussion of other forms of discrimination, and I think the answer is clear -- because those were already present in the Code. They were already present in the Code because, as the lawyers among you will I hope agree, they had been and remain a part of federal civil rights law and compliance procedures. 

What is new is that this new language was adopted to provide specific protection to groups that, I believe, there is universal assent ought to be protected, including (but not limited to) Jewish students and faculty. Because the Civil Rights Act of 1965 did not specify religion as a protected group, there was a need to find a way to interpret the law to extend this protection to groups, including but not limited to Jews, who are both a religious group and an ethnic identity. The somewhat awkward language in bold above was the solution, and this was adopted by executive order of the president, beginning in 2019 by then-president Trump  and reaffirmed in May 2023 by president Biden.

It is precisely because the main thrust of the amendment is to specify the protection of the civil rights of Jewish students that I advocated for the amendment and why I had hoped that others would as well. Indeed, the letter you signed states your support for the principle  of protecting Jewish students and faculty from antisemitism, and so it would have seemed to me helpful to have specified in the letter or in other public statements that the language above -- again the language that is already adopted by the federal government for purposes of civil rights protections. Indeed, it is my hope that you might be willing to make such a statement, individually, or collectively, of your support for the "principle¨ that "there shall be no difference in the treatment of persons because of"....being Jewish and the extension of the principle of "access to facilities for all" to include Jews. That, for me and for the students who spoke on behalf of the item, and for the majority of the Regents who voted for it, is the key point. That  is what the university was already required to ensure and what the University will, I hope, continue to do so. It is therefore to my mind a very good thing that attention has been called to this legal and moral responsibility.

The second part of the amendment is where, I believe, the objection lies. This is a small modification to a footnote used to describe "antisemitism" as it appears in the language above. In December 2022, the Board voted to insert into section 2 of this same chapter -- again the chapter deals with anti discrimination and section 2 deals with anti-bias training for faculty and staff -- a reference to antisemitism as being among the forms of discrimination to be addressed in this training. At that time, the footnote was inserted to specify that the antibias training should refer to the IHRA definition and associated examples. That reference has been in the Code since December of 2022, so it would not be accurate to say it was being "adopted" or "added into the main body of the Code" through this action. It remains in a footnote. 

The textual amendment added some language that specified that this would not be, as you have expressed concern, a restriction on free speech. I reproduce below the footnote, which is by the action of the Board  now moved from section 2 to section 1, and I have highlighted and bolded the added language.

“Antisemitism” refers to (i) the non-legally binding working definition of anti-Semitism [sic] adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA) and (ii) the "Contemporary Examples of AntiSemitism" identified by the IHRA, to the extent they might be useful as evidence of discriminatory intentConsideration of the materials described in (i) and (ii) shall not diminish or infringe upon any right protected under Federal law or under the First Amendment and shall not be construed to conflict with local, federal, or state lawDeterminations that a particular act constitutes illegal discrimination or harassment requires detailed analysis of the particular facts at issue and consultation of applicable legal and regulatory guidance . "   

Note that not only does this language specify that there  is infringement upon First Amendment protected speech but it also specifies that the examples of the IHRA definition cannot be used as basis for determining discriminatory intent or harassment without "detailed analysis of the particular facts at issue and consultation of the applicable legal and regulatory guidance." In other words, the concern that a "process of simple ´matching´" would be used to prosecute or punish faculty or students is explicitly counter-indicated in the text of the amendment. And again, for those who are familiar with the handbook, extensive process exists in other parts of the Code for matters such as discipline of student or faculty, so  this passage would not be the basis for encroachment upon academic or free speech is, not only in my view of but that of the System Counsel, as she explained at the Board discussion on Friday.

The bulk of the letter you signed is fundamentally about the philosphical question of the "IHRA" definition in relation to other possible definitions. And certainly there is a good basis, always, for further discussion and debate. And in that debate, which I hope we will have, I would be eager to make  the case for at least some of the aspects of the IHRA to which your letter objects, notably the examples that do specify instances in which holding Jews accountable for the policies of Israel or criticism of Israel that is not applied to any other country, could be considered antisemitic. You may be interested to know that while the letter dismisses the 7 of the 11 examples that refer to Israel as being not related to "antisemitism", the Jerusalem Declaration devotes 9 of its 15 "principles" to consideration of Israel. I do not think it is either intellectually sound or fair to suggest that there can be a discussion of antisemitism and protection against harassment of Jews without some reference to Israel, and in particular I would suggest that the provision holding that it could be discriminatory to hold individual or group s of Jews responsible for policies of Israel is a quite valid concern. 

The attached memo explains the history of this definition, which was first developed by specialist scholars on antisemitism in 2003 and was known for most of its history as the "EUMC" definition, referring to the European Union Monitoring Centre for Racism and Xenophobia, which adopted it in 2005. This was in turn adopted by European Union parliament and the Organisation for Security and Cooperation in Europe (to which the US is a party) the same year, and it was adopted in 2013 by the United States Department of State for the purpose of determining if a foreign country should be considered to have a problem of antisemitism in its culture. It was also adopted in 2013 by the United States Department of Defense in 2013 for purposes of anti bias training of the armed forces. It was, in turn, adopted in 2016 by the IHRA and since then it has been adopted by over 40 countries, over 1200 cultural and educational institutions, and over 350 American universities. It was adopted by the US as part of the national antisemitism strategy in 2019 and included in the 2023 expansion of that strategy. In no instance in any of these jurisdictions has anyone been prosecuted or disciplined for speech critical of Israel based upon this definition. (There are jurisdictions in Europe in which Holocaust denial or antisemitism is illegal, including the Federal Republic of Germany, but in no cases has anyone been prosecuted by virtue of the IHRA definition.) Indeed the European Union prepared and published in 2021 a Practical Handbook for the Effective Use of the IHRA Definition (which I have attached) which includes explanations of the real-world examples of each of the "contemporary examples," which are not actually that vague or abstract in light of the actual cases laid out here. Moreover, it includes a page on best practices for the use for which the Regents adopted it on Friday, for reporting and compliance (page 19) and it includes a 3-page section on best practices for use in educational institutions and universities (page 27-30), none of which are as speech codes or to restrict academic freedom. Indeed, the primary author of this definition did as your letter indicates, state that it should not be used to inhibit speech, as did former AAUP president and leading academic freedom advocate Cary Nelson, and this is precisely why the use adopted by the Board does not and could not, in any "detailed analysis," be used to punish anyone for speech. It could be used to identify a "pervasive and persistent" environment of harassment (the standard used by the Compliance office in title IX or title VI investigations) but it could not be used to punish someone for a use of speech that is critical of Israel or even which calls for the "dismantlement" of Israel.  

But hereś the key. The code amendment did not -- despite the somewhat inaccurate headline in today's LVRJ -- adopt a definition of antisemitism at all. This is not only because the IHRA definition had already been adopted, by the Federal government, and this is included in the DOE OCR guidance. Therefore, if the case is to be made to adopt a different definition, in the context of title VI compliance, that case is being made in the wrong venue by opposing the NHSE Code Amendment. That case should be made to the federal government, and if that is your intent, fortunately, there is a presidential election this year. There is also of course the option of litigation against the federal government for adopting this definition as an encroachment on 1st Amendment protected speech.

But as one of the Jewish student leaders said to the Board on Friday, "Why should explicit protection of my civil rights as a Jewish American be set aside so there can be a philosophical debate about a definition"? IF the Board were to adopt the same article with a reference to the Jerusalem Declaration, any compliance reporting to the Department of Education or any response to a title VI investigation would have to be based upon the federal government's definition, which is to say, in reference to (not necessarily based upon) the IHRA definition. 

Finally, for those who wish to enter into the specifics of the competing definitions, the primary substantive differences are that the IHRA definition does specify that statements which question the "right of the Jewish people to self determination on its ancestral homeland" could be considered antisemitic, while the Jerusalem definition notes that the right of "Jews as individuals" to self determination "in equality" with others would be possibly antisemitic. The IHRA definition uses as an example the statement that "Israel is a racist state" as an example of possibly antisemitic speech and that calls for the outright destruction of Israel do imply violence against Jews and could be considered antisemitic. The Jerusalem definition does not. Thus, as I have said to some of you already, if the concern is that you feel you will be restricted from saying "Israel is a racist state" or calling for the "destruction" or "dismantlement" of Israel, then yes there is a substantive difference in the two definitions. BUT this does not mean that under an environment in which IHRA has been adopted as a working definition, such as the one in which we have been living since 2019, you would not be able to say those things. They are stil protected by the First Amendment, and I personally would continue to advocate for your academic freedom to say those things. 

But I would ask you to consider how that sounds to an Israeli student or colleague. Or if you state that as a Jewish student or I as a Jewish faculty member are responsible for the actions or policies of Israel that you consider racist, I do think that is hostile. Not illegal. But hostile. If stated in a persistent and pervasive manner, that could certainly create an environment in which access to education or the ability to do ones job could be inhibited.

If you are still reading, I will close with this. I supported and celebrated the adoption of this amendment. And if it turns out I am wrong and you find yourself or anyone you know finds yourself in a position in which your speech is being curtailed or in which you are being punished or disciplined for criticism of Israel, please let me know. I will be among the first to help, and I will draw on my experience as an advocate for faculty rights and for academic freedom. I can also request the assistance of the AntiDefamation League on your behalf, as could you, as the ADL regularly provides support and assistance to students or workers facing discrimination based on their Muslim religion, Arab cultural heritage or otherwise. And of course you can count on the ACLU and the NFA to protect you if it is a matter of prosecution based on political speech.

But Id like to ask something of you, colleague. Having signed a letter stating your concern about antisemitism, can I ask for your help? Can I ask for you to help students who are fearful? Can I ask you to help launch a discussion on campus about antisemitism -- a serious, intellectual and historically informed one? One that actually looks to decades of scholarship in this field and applies the principles of anti-racism that we apply when we discuss anti-Black racism or harassment of LatinX or Asians? 

That is the issue on which the Regents voted on Friday, and in my opinion, they made the right decision. You may disagree, and I welcome the opportunity to discuss. Please feel free to reach out, by email or phone, and please raise concerns, objections, objections of moral outrage to what I have written or said. The campus has had a difficult year for many reasons, not least that many are afraid to discuss this issue. Lets stand against that fear and silence and lets not treat each other as hostile entities, but as colleagues. I look forward to talking to you.

Additional resources from Professor Brown:

Dear Colleague Letter_ Protecting Students from Discrimination, such as Harassment, Based on Race, Color, or National Origin, Including Shared Ancestry or Ethnic Characteristics (May 7 2024)

Handbook for the practical use of the IHRA working-definition


On the IHRA definition

The Nevada Faculty Alliance welcomes contrasting points of views and appreciates Dr. Brown's feedback. NFA condemns bigoted and hateful behavior in all forms. 

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