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Touro Talks are timely conversations engaging college students, thought leaders and experts from around the world on academic and contemporary issues. Hosted by Touro University president, Dr. Alan Kadish.
Touro Talks is sponsored by Robert and Arlene Rosenberg. If you would like to sponsor, please email tourotalks@touro.edu
[UPBEAT MUSIC]
[Dr. Alan Kadish] This is Touro Talks, sponsored by Robert and Arlene Rosenberg.
Welcome, everyone. I'm Dr. Alan Kadish, the president of Touro University. And it's my absolute pleasure to be here this evening with Judge Roy Altman and with Alyza Lewin as well as Professor Sam Levine, director of the Touro Law Institute at Touro University.
Judge Altman is a US district judge. He was confirmed in April of 2019. And he sits on the US district court for the Southern District of Florida. He has a BA from Columbia and a JD from Yale Law School. He clerked at the 11th Circuit Court of Appeals and then was a federal prosecutor before being appointed as a judge.
Alyza Lewin is the president of the Louis D. Brandeis Center for Human Rights, a not-for-profit organization established to advance the civil and human rights of the Jewish people and promote justice. She specializes in litigation and mediation. She has a BA from Princeton and a JD from NYU. We're pleased to have both of them with us tonight.
The topic we're going to talk about tonight is not an upbeat one. It's anti-Semitism, what's happened in the world, what's happened on college campuses, and in particular with our two world-class legal experts here tonight, along with Professor Levine, speaking about the legal aspects, both related to the attack on Jews as well as legal measures that are being taken to try to help combat anti-Semitism.
So just as a backdrop, we're all familiar that in the last several months, there's been a dramatic increase in anti-Semitism around the globe. That increase has been manifest in a number of ways. And that's included protests and demonstrations on college campuses, which have featured hateful speech and, perhaps even more perniciously, the social ostracization of Jews on campus. It's also been manifest by an increase in anti-Semitic incidents throughout the United States, both on and off campus, and by actions in world legal bodies opposing Israel and, in many ways, efforts that appear to be anti-Semitic.
So I'd like to start with Alyza Lewin. You had mentioned, and you've certainly written about, how the legal attack in the international courts on Jews and what's going on in the United States on college campuses and elsewhere you think are related. So could you talk a little bit about that first just to give us a backdrop, an introduction, to the topic?
[Alyza Lewin] Sure. Thank you, Dr. Kadish. What we're seeing going on in the international arena and what we're seeing going on campus and what we're seeing going on just in society, not only in the United States, but around the world, and that link most people still don't understand or recognize, which is that we are not witnessing, for the most part, a good faith political debate about the Arab-Israeli conflict.
Many of the folks who are engaged in the hostilities on campus, the hostile rhetoric, are not interested in having a dialogue about how to resolve this conflict or how to reach a point of coexistence. What's really happening is the demonization of Jews and, in particular, Jews who define their identity as being part of a people with an ancestral heritage that's rooted in the land of Israel.
In other words, the Jews are not just a faith. There are many Jews who don't define their Jewish identity by religious practice. But rather, they define their Jewish identity as being a part of a people. And what's the common denominator that unites us all as a people is this shared history, this shared heritage.
Our collective understanding of the Jewish people's experience and the identity of the Jewish people was forged in the land of Israel. Right? That's where we first lived as a people with a code of laws, a court system, the Sanhedrin, where we had our Jewish temple, where we had a Jewish king. This was where our identity as a people and as the nation, an Am Yisrael, was first established. And if you define yourself today as a Jew, as part of this people with this heritage, you're being told, oh, no, that definition of your identity is unacceptable.
And there's a very determined effort, and we see it now on university campuses in particular, to establish scholarship that erases and denies that identity, as a matter of fact. You have a narrative now that is spreading on campus that suggests that, yes, there may have been Jews and Christians and Muslims living in the ancient land of Israel, but those were just religious identities. The cultural, ethnic identity of all those people, this narrative goes, says that they were all Palestinian. That's how you get the suggestion that Jesus was a Palestinian.
There is a very determined effort. And what Jews who say, wait a minute, no, we have a Jewish history here, what they're being told is if you claim this is a Jewish history, you're now Judaizing the Palestinian history. And so the Jews are being told their history doesn't exist and that it's unacceptable for them to claim it.
And what we see in the international arena, which Judge Altman can talk about, is part of this demonization of the Jewish people and Israel and our claim to have an ancestral connection to this land and a right as a result of being a people with a history in this land to self-determination in this land.
[Dr. Alan Kadish] So Judge Altman, I want to follow up on what Alyza Lewin has talked about and ask you the following perhaps complicated question, which is, in international law, what defines the right of a people to a land? How is that defined in international law? And is there a working definition that we can point to or is it more of a fuzzy concept open to academic debate?
[Judge Roy Altman] Well, there is clearly now a mechanism for a nation to become a state. That mechanism is by a vote of the United Nations and ratification in the Security Council with defined borders. But historically, there are other ways in which nations have become a state, really, three main ways.
The first way is by winning it in a war. And that is the predominant way in which nations have become a state and defined their boundaries for thousands of years. And there are two kinds of wars. There are offensive wars. And there are defensive wars, wars of survival.
Second, you can have a long-standing presence in the land that other people are willing to accept. And third, you can have an international decree, either a multilateral treaty or recognition and ratification from an international body like the United Nations, recognizing your claim to the land, saying, I have a right to this land, much as you would in your home.
And we can compare it, for example, to the United States, a country that I hope all of our viewers would accept is legitimate over the borders that we now govern. First, we won it in a war, the Revolutionary War. But it was an offensive war, 1775 to 1783.
There's no doubt that George III didn't want that war. In fact, when John Adams goes as the first minister to the court of Saint George of Saint James at the very end of the war, George III says, I was the last to agree to the separation, making clear to him that the English, including the crown and the parliament, didn't want the war. Is it legitimate? It's unquestionably legitimate under international law.
Second prong, are we legitimate to the land? Are we indigenous to the land? No. No, we're not. Have we been here for thousands of years? No, we haven't. We arrived in 1607 as Englishmen at Jamestown. We came to Plymouth several years later in 1620.
It really wasn't, if you look at the literature, until a trial in Boston in 1761, where James Otis was the lawyer representing four men whose homes had been searched without a warrant, the precursor to our Fourth Amendment and was saying very patriotic things that people started to say, you know what? We're different than they are. And they aren't treating us right.
In fact, John Adams and Samuel Adams were young men in the gallery, very much moved by the things that James Otis was saying in that trial. And towards the end of his life, John Adams would write that it was "then and there in that courtroom in Boston, Massachusetts, that the Child Revolution was born."
So we're not indigenous to the land. We haven't been here for thousands of years. At most as Americans, we had been here for 15, 20 years by the time of the revolution. Is it legitimate? It's unquestionably legitimate under the law.
Third prong, do we have a document? Well, we have one of the great documents of all time, the Declaration of Independence. But it was written by Thomas Jefferson. And it was edited by the five members of the Committee on Style, Jefferson, Franklin, Adams, Robert Livingston, and as a Yalie, Roger Sherman, who was like the Bibi Netanyahu of New Haven, Connecticut. He was mayor, like, 12 times.
So those are the five members of the Committee on Style. And it was voted on by 55 members of the Continental Congress. Actually, 39 end up. But the point is, who are they? They're all Americans. They're all patriots. They're all rebels. We don't have a treaty, a document, with other countries recognizing our independence and claim to the land until Ben Franklin negotiates one with Vergennes in France years later.
But no one would suggest that if 4,000 Mexican nationals crossed the border tomorrow into La Jolla and slaughtered 40,000 American citizens in San Diego, which is what it would be per capita, that that would be OK because we were settler colonialists in the land and our borders aren't legitimate and they were just reclaiming their ancestral homeland. No one would say that. But we say that when it comes to the Jews who live in Israel. And here's where we start to get into the double standards, both in the popular conception and under the law.
Let's compare the three prongs to the Jewish state of Israel. First prong, they have won the land in war after war after war, 1948, after they declared independence, invaded by five Arab armies. They won the war in '49, 1956, defending the Sinai, when Gamal Abdel Nasser closes off the Suez and fights a war against Egypt, 1967 against Jordan and Syria and Egypt, and then, of course, in 1973, on the holiest day of the year, while most of the army and many Jewish citizens were at home and in their synagogues praying and resting on Yom Kippur, invaded by five Arab armies. And still they won the land, not wars of offense, like our war of independence, but existential wars, wars of survival, unquestionably legitimate under any conception of international law going back thousands of years.
Second prong, we haven't been in the land for 15 years or 20 years or 100 years or 400 years. Jews are the indigenous people of the land of Israel. The story that there's some Palestinian heritage in the land of Israel is ridiculous. We can go back to the year 1205 BC for the first extra-biblical mention of the Jews living and ruling in the land of Israel, Merneptah Stele.
Merneptah was the son of Ramses II the great builder of ancient Egypt. When Ramses died, Merneptah became pharaoh himself. Towards the end of his life, he builds for himself a palace in Thebes on the River Nile. And he has his scribes do what any self-respecting pharaoh would have his scribes do. They construct a stele, a giant basalt tablet. It's 12 feet high and 10 inches thick and looks like the tablets that Moses would have brought down from Sinai if he could carry a 10,000-pound stone.
Now, people claim that this is just Zionist propaganda. But the problem is it was found in the 19th century. All archaeologists agree that it's legitimate to the 13th century BC. And it's not in the Israel Museum. It is in the Cairo Museum and was found by a German archaeologist.
And on Merneptah Stele, he lists out all of his military accomplishments. And at the very bottom, he writes, Merneptah writes, that he brought his Egyptian army into Palestine. No, of course not. There was no such thing. He brought his Egyptian army into Israel. And he made war against the people and the king of Israel in places like Ashkelon and Gaza, two places that are still in the land of Israel today. And he says he wiped Israel's seed from the earth, which, of course, we're all still here. So that was a lie. But he's entitled to a little bit of poetic license.
So the point is that Jews haven't been there for 200 or 400 years. They are the indigenous people of the land. They've been there for thousands of years, unquestionably legitimate under the law.
And then the third prong is very simple. Jews and Israel don't just have a declaration of independence. There is that. There is an Israeli declaration of independence. And for people who care about gender equality, pop quiz, of the 55 people who signed the American Declaration of Independence, how many were women? Of course, the answer is none.
Of the 10 people who signed the Israeli declaration of 1948 for the first time in any Western democracy, in 1948, 10 people signed it, two were women, including a Golda Meyerson, who would become Golda Meir and the first female prime minister of the Jewish state of Israel. They do have a declaration of independence. But they have something better. They have an international decree voted on 33 to 13, overwhelming vote, by the representatives of the combined nations of the world and General Assembly in November of 1947, recognizing their ancient claim to the land and ratifying the land of Israel as the ancestral home of the Jewish people.
And then there's something better. We judges, we do not like motions for reconsideration. Out there, you lawyers, don't file them. That's kind of a joke. But the point is we don't like motions for reconsideration, and neither do the Jews.
After the war ends in the beginning of '49, the Americans and the Soviets, to some degree, say to the Jews, you know what? Go back and get it reconsidered. Go back to the United Nations and get it reratified. Make sure everyone's cool with the results of the '48 war. And Abba Eban and David Ben-Gurion say, no, we don't want to go back to talk to those people. And the Americans say, go back and get it ratified. And guess what? They do.
And in 1949, they go back and they win that vote, ratifying the ancestral home of the Jewish people by an even bigger margin, 37 to 12. And yet we claim, people claim on campuses of my alma maters, Columbia and Yale, and probably Alyza's, too, that we are white settler occupiers in our own land, a preposterous example of anti-Semitism in Western universities today.
[Dr. Alan Kadish] So based on the eloquent presentation that you've both made, one of the controversies that has been promulgated in the press and on campuses these days is that one can have anti-Zionism without being anti-Semitic. So is that, A, theoretically possible? And B, is it really practically the case that most of the people who are anti-Zionists are not anti-Semitic? So Alyza, why don't you take that to start with?
[Alyza Lewin] Yes. So the easy answer to that is no. You cannot say, I just oppose, I love Jews, but I oppose Zionists because Zionism is an integral component of Jewish identity. And it's a part of Jewish identity which, for centuries, Jews have been pressured to shed.
If you go back to the very first time in history that Jews were actually offered full emancipation and equal rights, it was in France in 1789, when they copied our constitution, when they decided to create the Rights of Man. And they debated in the French parliament about whether or not that should apply to Jews.
Mind you, there was no debate about whether it should apply to women. That they decided no right off the bat. But for Jews, it was an extended debate. And they said, well, for Jews as individuals, we should give them everything, but as a nation, nothing.
The idea that if you were a Jew who somehow felt connected to the Jewish people, to a Jew in England, to a Jew in Germany, you felt that. You yearned, as the Jews did, for the return to Zion.
One of the things to add to what Judge Altman said is that Jews, once Jews were expelled from the land, they never stopped yearning for that ingathering of the exiles and the return of the Jewish people to the land. Jews have been praying facing Jerusalem, Zion, for centuries and have included not only in all our prayers each day the prayers for the return to Jerusalem, but even on the holidays, on the Pesach Seder and on Yom Kippur, "L'shana Haba'ah B'Yerushalayim." And we're constantly remembering Jerusalem.
So what happened when the French said, well if you want full emancipation, you got to shed this part of your identity that connects you to the Jewish people or to this land? And there were leaders in the French, Jewish community that said to the Jews, don't mess this up. Religion, your Judaism, can be a private thing. But we should all recognize that now France is our Zion, where French, and there were many who felt pressured and who shed that and who said, France is our Zion.
And then a few years later, the same thing happened in the Netherlands. In the Dutch parliament, they came up with an oath that they wanted the Jewish people to say. They should say, I, so-and-so, declare that I do not belong to any other people, nor any other part of any other people, but solely and only to the people of the Netherlands.
So this idea that Judaism encompasses more than just religious practice, but that we are also a people with this shared heritage, is something that Jews have been pressured to give up for generations. And what we are seeing today is just the modern incarnation of that.
And Zionism is the code word that's being used to try to hide this shunning of the Jew and make it politically acceptable because they're suggesting that if I just call the person a Zionist, I'm not targeting the Jew. I'm actually talking politics.
But that's not what's happening. And you can see that's not what's happening on campuses. People aren't stopping and asking and polling each of the students who they're not allowing into the encampments and saying, what's your political opinion or what's your religious practice, is if you are, look like one of those Jews, if you are somehow identifiable as a Jew, unless you are shouting that you have disavowed this part of your Jewish identity, you are not welcome.
And not only are you not welcome in our encampment, you're not welcome in our advocacy organizations. We won't let you come and advocate on women's rights, LGBTQ rights, climate change, immigration issues, none of it. If you will not agree to disavow this part of your heritage and your identity and condemn Israel, then you will be treated as a pariah today.
[Dr. Alan Kadish] So let's switch gears for a moment, perhaps. And then we'll come back to what's going on campus in a bit. But Judge Altman, part of this delegitimization of Israel and anti-Semitic rhetoric, as well as action that's taken place around the world, has been manifest in some of the world courts. So can you tell us a little bit about, first, explain to us a little bit about what the jurisdiction of these bodies are and what's going on legally in those courts and how you see those arguments moving forward and whether you think, ultimately, it will make a big difference about what happens in those courts?
[Judge Roy Altman] Well, there are two main courts. The International Criminal Court is what they call the ICC. And the International Court of Justice, which they call the ICJ, there, they have different jurisdictions. The ICJ deals with states. That's the simple way to describe it. And the ICC deals with individuals.
And the two cases that are going on now are related to the war in Gaza. The first case in front of the ICJ was brought by South Africa, not surprisingly, after the ruling party in South Africa was short of money and about to go under, wasn't going to be able to pay the filing fee for their re-election campaign, which they did badly in, as it turned out, was, then hosted some Hamas representatives, had some of their political members fly to Tehran, received a huge influx of cash, and then, voila, filed their genocide case, accusing Israel of genocide in front of the ICJ.
Very important to remember what the ICJ did not say in the case that South Africa has brought, the ICJ did not say that Israel is committing genocide in Gaza. The ICJ did not say that the evidence supports a finding that Israel is committing genocide in Gaza. And importantly, although this is constantly misread by people who either don't know how to read legal opinions or just didn't bother to read the legal opinions in the case, the ICJ also did not say that it is plausible to believe, that's the one that you most often read, they did not say that it is plausible to believe that Israel is engaging in genocide in Gaza.
In fact, they said specifically the opposite and repeatedly jumped over each other to make clear several times in the opinion that they were not saying that it was plausible that Israel was engaging in genocide in Gaza. All they said was at a very preliminary stage of the case, the most preliminary phase of the case, they said that they had jurisdiction to hear it, which I think is controversial because South Africa didn't actually mediate or confer with Israel before filing its claim, which is a jurisdictional requirement under the court's laws. But be that as it may, they basically said, we know that Israel would have opposed it. So any pre-filing conferral would have been futile.
So they first said they had, that South Africa had standing to bring the claim that there was jurisdiction. And second, they said that if all of the things that South Africa alleges are true, if everything they alleged is true, and I don't know who on this chat has read it.
But South Africa has submitted an 88-page brief full of double and triple and quadruple hearsay with almost no reliable sources or firsthand accounts, no, obviously, evidence from the Israeli side other than statements that are made by people who were not involved in the war cabinet, and never cites or quotes all of the actual members of the war cabinet who were on a daily basis sending communiques to the generals who were then themselves sending communiques to their subalterns making clear that the IDF had to comply with international law in its armed conflict in Gaza, in particular on the law of proportionality and distinction, which we can talk about later, never gets quoted at all.
In fact, the South African brief makes it appear as though the IDF, this extremely powerful army, is fighting a war in Gaza against a Palestinian people with no air force and also no such thing as Hamas, which is essentially not mentioned in the South African briefing. I mention all of that to make this point. The ICJ's decision simply says if everything in the South African brief is correct, which we know that it is not, and many of the things that the South African brief has discussed have been deemed to be false, for example, the casualty figures which the United Nations has decreased almost in half since the brief was filed. But assuming that all the things that South Africa said were false, then the claims South Africa as a non-belligerent is making plausibly fall within the definition of the law. That's all it said, essentially, a decision that doesn't decide anything, which makes sense for that very early phase of the case.
If you file a complaint in my courtroom and the defendant files a motion to dismiss and says, everything you've said is not true, none of these things occurred, I, as the judge, am required to say, hey, I don't have any evidence. It's too early in the case. I'll look at all the evidence and claims in the light most favorable to the plaintiff and then deny the motion to dismiss, give you discovery, and say, I'll see you again in six months at the summary judgment phase. And that's basically what the ICJ did. In fact, it made clear that it was not going to order this emergency remedy, the real only emergency remedy South Africa wanted, which was to stop the war and demand a ceasefire. The ICJ blatantly refused to do that, I think in some respects, a huge win for the Israelis.
And now the case will go into a variety of discovery-related phases that will take probably upwards of three to five years, maybe more, by which time this war will long be over and at the conclusion of which, the standard flips entirely to a point where the South African claim becomes essentially impossible to prevail on. There basically has to be no other explanation for the IDF's conduct and no other reasonable explanation for the IDF's conduct in Gaza but an intent to wipe out or destroy an entire people in whole or in part, which is the definition of genocide.
If South Africa cannot prove that incredibly, meet that incredibly high standard, which it will not be able to, then the claim ultimately will be dismissed. The truth is it will be dismissed long before that because once the war is over, South Africa will have no interest in pursuing the claim.
One interesting additional factor relating to the ICJ case, of course, is that there have been several emergency petitions that the South Africans have brought during the course of the pendency of the war since that original decision saying, hey, now this has happened, ICJ. Now you definitely have to stop the war. And three or four times, they've done that. And three or four times, the ICJ has refused, the last being a ambiguous order related to the invasion of Rafah in the south of Gaza, where for the third or fourth time the South Africans came and said, now you really have to end the war because this is going to create a huge humanitarian disaster. There's going to be a genocide in Rafah.
By the way, fast-forward seven or eight weeks. The IDF is in Gaza, in Rafah. And there have been almost no claims of mass civilian casualties. The IDF's conduct of the war in Rafah, as someone like John Spencer has written, a military urban warfare expert, has been one probably setting the gold standard for militaries in modern history.
But be that as it may, basically, the ICJ, again, decided without deciding saying, you may not invade Rafah so long as the invasion of Rafah will cause genocidal situations. In other words, don't commit genocide in Rafah. And since Israel was saying, we're not going to commit genocide in Rafah, Israel went ahead and invaded Rafah. That was, I think, seven or eight weeks ago. And as you've seen, there have been no proceedings since. And the issue was never brought to the Security Council, which it would have been if everyone was agreed that Israel was violating the ICJ's direct order, which it is not. So that's the ICJ case. The ICC case is,
[Dr. Alan Kadish] Before you go on to the ICC case, I just want to make the point, is, I think you've very cogently said even though we haven't specifically talked about the definition of genocide, it was implied in your remarks that the definition is the intent to eliminate a people, which clearly the court and common sense has shown is not the case. And the really sad part of South Africa bringing this case for reasons that you articulated is the fact that there probably are actual real genocides taking place in Africa. And South Africa is ignoring those. And motivated by money being infused through Hamas, they're bringing this case against Israel.
[Judge Roy Altman] Yeah. And on the military law front, I alluded to it earlier, that there really are three main elements to the law of armed conflict here. One is the law of mitigation. There was yet another article today by two Columbia professors making clear that Israel has provided more food than is even consumable by the population of Gaza over the course of the last seven months. A friend of mine who founded Natera and won, as I understand it, a Best PhD award at Stanford University, Matt Rabinowitz, just wrote an op-ed in the Wall Street Journal last week laying out just the data, just the numbers, taking all the numbers from the UN, the Americans, the Europeans, the Israelis, combining them, and extrapolating out what has been brought into Gaza, more calories, more protein than the population of Gaza would have needed over the course of the last eight months even though under the law, which is essentially directed at the law of mitigation, mitigating civilian losses during a time of war, especially a time of siege, even though Israel, arguably, under international law had no obligation to provide any material support to the Gazan population because the exception under international law for providing mitigation in the form of food, fuel, and medicine to the civilian population that you have laid siege on is if you become convinced that the material support will be diverted by the enemy force within that population.
And there is overwhelming evidence. In fact, Hamas no longer denies that they're diverting the aid that's coming in. They're just saying, we need to divert it because we're the people in charge of distributing aid in the community, which, of course, is preposterous.
So Israel going way above and beyond its obligations under the law of mitigation in the law of proportionality. John Spencer and Colonel Richard Sharpe of the British army, John Spencer is the chair of the Urban War Institute at West Point, not Tel Aviv University, has made clear that the average and acceptable limit of militant-to-civilian casualties under international law and the law of proportionality is 1 to 9. That seems extremely high. And that's because war is terrible. We should have believed William Tecumseh Sherman when he told us, as he was burning Atlanta to the ground, that war is hell. And that's what it is. No one says it's nice. It's extremely violent and bloody. And civilians die as a regular consequence, a tragic consequence, of every war, including modern wars.
The US and our allies set the gold standard on the law of proportionality in Iraq and Afghanistan. But our militant-to-civilian kill ratio was about 1 to 4 and 1/2, 1 to 5. I say about because, and this is important, the fight for Mosul, which, where we laid siege to Mosul for nine months, destroyed about 90% of its buildings, no one claimed that was genocide, by the way, because it was necessary to eradicate the evil of ISIS in 2012. That happened in 2012. That's 12 years ago.
No expert in the world is sure how many civilians were killed in the fight for Mosul 12 years ago. But about one hour after Noa Argamani and the other three hostages were released from their civilian captors in Nusseirat in Gaza, Hamas send out a cable with a precise figure, 247 civilians killed during the rescue operation, obviously a preposterous lie.
Just to finish that point, under the law of proportionality, Israel has set a new gold standard that both John Spencer and Richard Kemp, not Jews, by the way, have made clear no army will ever be able to replicate in the context of an urban war like this, a kill ratio of about 1 to 1, maybe 1 and 1/2, something no army has ever been able to accomplish in an urban war environment, especially, by the way, an urban war environment like this one, where it's unlike Manila in some respects, which was another battle where there were tunnels and lots of civilian casualties at the end of, towards the middle of World War II.
You've got an army here, if you can call it that, who purposefully, their number one war strategy is to kill Palestinian civilians. If that wasn't clear, it became clear again just two weeks ago, when Yahya Sinwar's cables to his, to Haniyeh and other interlopers in Qatar were made public by the Wall Street Journal, basically praising their war effort by having caused the deaths of civilians in Gaza.
[Dr. Alan Kadish] That's tremendously eloquent, Judge. We're going to take a break from the international courts for just a moment to try to return to anti-Semitism in the United States and on campuses because, actually, many of the questions from the audience have related to that. So Alyza Lewin, can you tell us a little bit about, from a legal standpoint, what you're doing regarding anti-Semitism on campus? And then perhaps we'll get into some of the causes and issues that have been raised in some of the questions.
[Alyza Lewin] So since we're talking law, I'll give a little bit of a background on Title VI of the Civil Rights Act, which is one of the key tools that we've been using to counter and combat the anti-Semitism that we've been seeing on campus. So Title VI of the Civil Rights Act applies to any entity that receives federal government funds. And pretty much when it comes to institutions of higher education in the United States, almost all of them receive some kind of federal funding, even the private institutions, a very small number that are purely privately funded.
And so Title VI of the Civil Rights Act, which says that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance, the one catch with Title VI is that it doesn't actually include religion as a protected category. And years ago, particularly, actually, after 9/11, that became a rather significant issue when you had Muslims who were experiencing harassment and discrimination and Sikhs who were being mistaken for Muslim, who were suffering terrible bullying in some of the educational spaces.
And your choice when you're confronted with a potential violation of Title VI, the idea of Title VI is that all these institutions that are receiving the federal funds, that money comes with strings attached. And the string is that you have to make sure that all of your opportunities are being provided in a non-discriminatory fashion, that all the students, everyone, has equal access to the opportunities that you're providing.
And so if it turns out that there is either a community or individuals who are being somehow denied that equal access, you have a potential Title VI violation. And then what you could do is you could either go to court, file a federal lawsuit, or what many choose to do because it's less complex is to file an administrative complaint with the agency that's giving the money. And when it comes to the schools, it's the Department of Education.
And so there were complaints coming to the Department of Education, administrative complaints, after 9/11. And the question was, well, if these are coming from members of faith-based communities, is this religious discrimination? Does the Department of Education even have the jurisdiction to evaluate those claims?
And the interpretation at that point that was set out, the person who was actually the acting assistant secretary for civil rights in the Department of Education was, went on later to found the Brandeis Center, the organization that I am now president of. That was Ken Marcus. And he said Title VI, the way, he set out the understanding that Title VI would apply to members of faith-based groups when they're being targeted on one of these other characteristics or one of these other categories that are included in Title VI, race, color, national origin. In other words, just because you may share a common faith, it doesn't mean that you lose the protections of Title VI.
And so the concept of race, color, and national origin have been boiled down to a shorthand of shared ancestry and ethnicity. And this understanding of Title VI that it applies to protect members of faith-based communities like Jews, Sikhs, Muslims, and others when they're being targeted on the basis of their actual or perceived shared ancestry or ethnicity as opposed to their religious practice is an understanding of Title VI now that has been applied by all the successive administration. So this was initially set out in the Bush administration. The Obama administration, the Trump administration, and the Biden administration have all now adopted this understanding of Title VI.
And what we have seen, for example, is the Brandeis Center filed a complaint, an administrative complaint, with the Department of Education involving the University of Vermont. The basis for the complaint was overwhelmingly what we would consider anti-Zionist harassment and discrimination.
So there was a sexual assault survivor support group on campus. It was the largest support group on the campus, thousands of students. In 2021, after the last Gaza conflict, they posted that they were blocking Zionists. And when Jewish students tried to engage with the support group, they said, we don't talk to Zionists.
There was a book club, the Revolutionary Socialist Union Book Club, that had a list of things you had to pledge no to in order to be a member of this book club. So you had to pledge no to racism and homophobia and Islamophobia. You had to pledge no to anti-Semitism. But you also had to pledge no to Zionism to be a member of this book club.
And then there was a teaching assistant who thrilled to bullying Zionists online. She even posted at one point about the serotonin rush she would get from bullying Zionists in the public domain. When there was an Israeli flag stolen from outside a residence where Jewish students lived and they didn't know who did it, she posted on social media, commending the person who stole the flag, referring to them as the Spider-Man of Burlington, anonymously doing good.
And then she had this tweet where she asked, is it unethical for me, a TA, to deny participation credit to Zionists? I think it would be good and funny, she said, minus 5 points for going on birthright in 2018, minus 10 points for posting a pic of yourself with a tank in the Golan Heights, or minus 2 points just because I hate your vibe in general. And she had many more these sorts of tweets.
When the Department of Education reviewed this, most frequently, the way these cases, the administrative cases, get resolved is with what they call a resolution agreement. The universities don't want to lose their federal funding. So they negotiate an agreement with the Department of Education. And that's what happened in this case. And the Department of Education required the university to revise its policies, its anti-discrimination policies, and its training, among other things. They wanted to make sure that it would address and encompass this kind of harassment and discrimination, which the Department of Education treated as a form of what they called national origin discrimination on the basis of shared ancestry.
So the idea now today is that national origin discrimination is not limited to you're born in Israel, I can't discriminate against you because you're an Israeli. Now it's being applied and understood that if you are Jewish and you define your identity as being part of a people with this shared ancestral heritage connected to Israel and you're being targeted on that basis, shunned and marginalized and excluded or denied equal access to the educational opportunities on the basis of your Zionism, that will be treated or, as it was in this case, as a form of national origin discrimination on the basis of shared ancestry.
And so which cases has the Brandeis Center brought or which is it supporting in other cases in terms of specific cases against institutions?
So we have a whole slew of cases that have been brought complaints with the Department of Education. And then we also have since October 7 filed several cases in federal court.
So we have, excuse me, a case at the, against UC Berkeley, where the anti-Semitism has also just skyrocketed. What's important to understand is this didn't all start on the campuses after October 7. We were seeing this demonization, as we talk about, of Jews and Zionists going on now for years leading up to October 7. So it's as if the campuses had been primed, almost as if there had been dry brush put down across the campuses and somebody lit a match on October 7 and they all went up in flames.
That's what happened at UC Berkeley. At UC Berkeley, you had, for example, in the law school, it started with nine. Now I think it was up to 23 student organizations that announced that they had amended their bylaws to say that they would not ever invite as a speaker a Zionist, somebody who supported Zionism.
So in other words, they weren't saying, we won't have a program on Israel or Zionism. They said, we won't invite a speaker to talk on any topic if that person identifies as a Zionist. So this wasn't a ban on viewpoints. This wasn't a ban on topics. This wasn't a ban on programming. This was a ban on individuals based on how they identify.
And it was the university's, I think, refusal to recognize how Jews, and in particular Zionists, were now being demonized and shunned, and this was just one example, that enabled and helped facilitate the explosion of anti-Semitism on the campus. After that, we saw an absolute riot when you had an Israeli speaker come to campus after October 7. And the students had to be escorted out down through a back exit and a tunnel. The event was shut down. There had been students who had been assaulted on that campus.
We've seen, on other campuses as well. We also have a lawsuit against Harvard University where there were students at the Kennedy School who had, again, this starts before October 7 and ends up with the escalation into the violence post-October 7. But before October 7, there were students at the Kennedy School who had been in a program in a class that was, essentially, geared towards trying to teach you how to enlist grassroots support.
And these Israeli students decided that what they wanted to do, this was back, again, before October 7, at the time that you had the demonstrations involved with judicial reform that were tearing Israeli society apart at the seams. And they wanted to do a program about a project on how to discuss what Israel as a Jewish and democratic state should be and bring in people from across the entire spectrum.
And when they talked about Israel and referred in their project description to Israel as Jewish and democratic, their professor told them, oh, no, you can't say that. You can't say Jewish and democratic. And he opposed the idea of referring to Israel as Jewish or as democratic both and said that just to refer to it as Jewish is the equivalent of white supremacy.
And when they pushed back, he told them that they may suffer consequences as a result. And he enabled and facilitated what ended up becoming a very hostile conversation and hostile environment among the students on the campus and wouldn't allow the Israeli students the opportunity to even respond to these attacks.
And so when you have a situation on campus where, even before October 7, this is happening and the administration, in that case, they actually had an outside investigator do an investigation, who concluded that there had been harassment and discrimination going on. And yet the school did nothing. So if that was the attitude and the response before October 7, you can see why we have the problems we have on campuses today, post-October 7.
So now there are lawsuits. Now these universities are,
Sure, are under lawsuit.
[Dr. Alan Kadish] So we only have about 10 minutes left. And we have dozens of questions that have been posed by the audience. So I'm going to try to summarize them into a couple of categories.
So the first is several of the respondents commented on the atmosphere on campuses that you talked about and alluded to. And one made the point that at Columbia, which is my alma mater, that even going back 40 years ago, there was a, beginning to be the evidence of anti-Semitism and raised the question of, how did this happen? How has anti-Semitism become normalized on college campuses?
So I actually want to echo what one of the other questioners said, which is that it's more than anti-Semitism. It's, in some sense, a misunderstanding of right and wrong and a misunderstanding of who the oppressor and who the victim is.
And that doesn't apply only to Israel, but applies to an ethos that's permeated some college campuses around the country, which I think has driven some of the anti-Semitism that we've seen. And part of the reason I'm focusing on this is the question I want to end with is, what can we do about this?
So what I'd like to point out is that the anti-Israel sentiment and anti-Semitic sentiment on campus in part overlaps dramatically with an anti-democratic and anti-American sentiment. And to try to look at what might have caused this, I actually looked at what's being taught to every student at Columbia University because there's a lockstep core curriculum, which has been in place for about 80 years at Columbia. And when you look at the readings that take place about modern society at the Columbia course that every single student has to take, there's not a single reading that talks about America's accomplishments in the 20th or 21st century. It is an entire screed of anti-American, anti-democratic, in some ways pro-tyrannical view of the world. And that's what students are being taught.
And so what I want to do, try to close by answering the question, which I'm first going to pose to Sam Levine, is we've heard a little bit about the legal approach. What else can be done in the short term, apart from filing cases, to try to combat anti-Semitism on campus, other than trying to get what these two articulate speakers tonight have, out to get to the general public, which a couple of our listeners have alluded to?
[Samuel Levine] Well, thank you, Dr. Kadish. And I want to take just a moment to thank you, Dr. Kadish, for your leadership of Touro University, particularly through the Touro Talks. And to answer your question, it is these Touro Talks that are part of our effort to educate the public. And we are introducing courses at the law school and at other parts of the university, as you all know, to educate the public.
And I think it really is that lack of education, that lack of knowledge, and, in fact, ignorance among our youth, among our students. And we have heard throughout the Touro Talks over the past several months from brave students and professors and our speakers tonight about the ignorance that we see on the college campuses. So I think it really does start from educating, from bringing out these truths that our students are simply not aware of and that the bad actors are taking advantage of.
[Dr. Alan Kadish] Alyza, what, you've done a great job filing lawsuits. I think one thing that also you mentioned was complaints with the US Department of Education. I think that's where political activism can make a big difference.
So in the short term, I think those are two avenues that are, the three avenues that are available to us in the short term, are trying to do our own education, the lawsuits that you've filed, and then trying to impact the Department of Education. What other things do you think we can do to try to reverse this situation?
[Alyza Lewin] So I think there was a very, very good piece recently by Natan Sharansky and Tablet. And I saw him, actually, not long ago when I was in Israel. And he shared this thought with me even before he wrote the piece. And what he explained is that the key audience, he said, are the people who support you, but are too afraid to speak up and say anything. So they remain silent. He calls those the double thinkers. He says this was the term he gave them back when he was in the USSR as a Soviet refusenik.
And he said what he realized then was that it was essential to convert those double thinkers into active dissenters, who actually got the courage to speak up and speak out and push back. And what he said they estimated when he was in the Soviet Union was that what they needed was to convert one-fifth of the population into actual dissenters, and that would turn the tide and make it, at that point, impossible for the government to be pushing the narrative that they were pushing.
And he pointed to, we're talking about Columbia, the letter that the Columbia students wrote and signed that you have over 500 students who signed pushing back saying, don't define my identity for me. And the university has failed to protect me and enable me to fully engage in campus life with my full identity.
And he said, what we need, he said, those 500 students signed that letter with their full name, making them dissenters, no longer double thinkers. It's remarkable. He said, what we need on campuses is more of those letters. We need hundreds and thousands of students come the fall to start writing and signing their names to similar letters and to become active dissenters.
And so I actually think that one of the most important things that people can do is to actually speak up and speak out, be a dissenter. We get one-fifth of the population become dissenters, and we will turn the tide.
[Dr. Alan Kadish] So I think you're absolutely right. And one of the points that we've made recently is that it's not just the people on campus. But population in the United States, although there are different demographic groups, the majority of people in the United States still oppose anti-Semitism and support Israel. And as you've suggested, they're not being mobilized.
The only way to really change the atmosphere on campus is to change the atmosphere on campus. And what I mean by that is to address some of the issues that I alluded to before, which is the way some of the faculty, for a variety of reasons that we don't have time to discuss right now, have been promoting anti-Semitism and anti-Americanism.
And to change the faculty at a university and to change behavior university is not a simple thing, particularly when you have a tenure-based faculty. But if there's enough activism, if enough of those people who support Israel and oppose anti-Semitism speak up, ultimately there will have to be a response. And if we don't change the way we're educating students in K through 12 and don't change the way we're educating students in colleges and universities, it's going to be an uphill battle in the long run to try to make sure that anti-Semitism doesn't continue to pervade American society.
Judge, we've been quiet because of the talks on campus because you've indicated you have a conflict referring specifically to lawsuits on campus and which might ultimately come to your court to be heard. But are there any closing remarks that you wanted to make?
[Judge Roy Altman] I do. And I thank you for the program. It's been a wonderful program. I should just say that although it says Judge, obviously, my comments today have been in my individual capacity. And I don't ratify any of the things that Alyza said about these lawsuits on college campuses because they might one day come before me.
Let me just finish with three thoughts. The first is, to your point, Dr. Kadish, a recent Harris-Harvard poll found that 72% of Americans believe that Israel should invade Rafah, even if it causes civilian casualties. Just think about that number. That is way higher than the number of people who support either president, either party, the judiciary, the Congress. It's way higher than the number of people who believe that the COVID vaccine saves lives or that agree on abortion, gay rights, immigration, gun control, all the hot-button issues in American politics today, a resounding, despite nine months of ridiculous anti-Semitism at our elite schools and in much of our Western media outlets, a resilience among the American population on this issue that I think does cross party lines and is cause for optimism.
Second, I've traveled the last eight months since October 7 the whole country, giving speeches about the story of the Jewish people. And after every single speech, I get dozens, sometimes hundreds, of people who want to tell me their story. And they tell me that they support Israel because a Jewish man once, a Jewish doctor once saved their son or because a Jewish lawyer once took their case pro bono or because a Jewish landlord once allowed them to have six months for free.
The fact of the matter is that we need to be lights in the community not just when we're out there talking about anti-Semitism or when we're talking about Israel, but when we are at home with our children and grandchildren, when we're at work with our colleagues and counterparties, when we're in courtrooms with our co-counsel and opposing counsel. We need to carry the torch of "tikkun olam" that has been passed down to us for thousands of years, "l'dor v'dor", because they are always watching us.
And the third thing that I will say is I just recently, with the World Jewish Congress, took 14 federal judges to Israel on a first of its kind educational mission, met with the supreme court, met with generals and everyday people. And it was an incredible visit. But these judges, many of whom were not Jewish and had never been to Israel before, totally transformed by what they saw there.
And so I tell people, if you want people to believe in Israel, figure out a way to get people to go. All the people Alyza is talking about today, none of them, I guarantee you, have ever been there. The people who say that it's a white colonialist state have no idea that there are 2.1 million Muslims who live as full and free citizens in the Jewish state of Israel and who vote, who have one member of their community, is on the Supreme Court of Israel. 10 of their members are members of the Knesset.
If Israel is committing apartheid and if the Jews are committing apartheid in Israel, it's the most inept apartheid anyone's ever heard of. Nobody that Alyza was talking about knows that there's 287,000 Black Ethiopian Jews with full citizenship in Israel or that there's 175,000 Druze living as free citizens in the state of Israel or that the city where Jesus Christ preached in, Nazareth, is, 90% of the 77,000 people who live in that city are Muslims who play pray facing Mecca five times a day in the Jewish state of Israel.
And I'll just close with one very short story, which is that we went to the Re'im music festival site where the Nova Massacre occurred. And we got off the bus. And if you've seen the memorial, it's a very powerful memorial. There are 364 young men and women who were killed at the music festival. And each one has a mound for each person who fell, mound of dirt. And from the mound is a stick with a picture of the person who fell there.
And when we came off of the bus, the judges, there, we were met by the overwhelming piercing sobs of a mother who was lying prostrate over the mound of her son. And her family members were trying to pull her off. But she would not be moved. And I thought to myself, we got to get out of here. We're just in this woman's space. And her cries were overwhelming.
So we moved over to the right. And as we started to move, I thought I heard music. And I thought I was going crazy. But sure enough, in a clearing just off the right where the bar was, where all these young people were killed at the music festival, there was a group of about 50 women, arm in arm in a giant circle. And one of the women turned around and looked at us and said, please join us. And all of us judges from America interspersed ourselves among this circle. And everyone started to sing "Hatikvah," not a dry eye in that circle.
And I thought to myself, what an amazing symbol of these people. In the spot where more innocent Jews were murdered than at any other place on Earth since 1945, these women had come all the way down to the south by Gaza, left whatever they were doing on a Thursday in Tel Aviv, rented a bus, and came to the spot where the bar was, where all those bodies were piled up in the 47-minute video we watched, and they came to sing not of vengeance or of hatred or of vindictiveness, but of hope because that's what "Hatikvah" means, hope for each other, hope for their country, hope for the land for which they and their ancestors had fought for more than 3,000 years, a people that are deserving of our love, our admiration, and our support. And no one who visits, including especially these 14 federal judges, can miss that integral point of their existence.
[Dr. Alan Kadish] So I'm happy you closed with that because one of my teachers used to say pessimism is not a Jewish trait. So for all the negativity that we've heard about, we've got to be optimistic that working together with great people like Roy Altman and Alyza Lewin and Sam Levine, that we can overcome this latest incarnation of anti-Semitism and continue to be the great contributors to American and world society that we have been throughout history.
Thanks, again, for everybody's participation. Thanks to our, the hundreds of people in our audience. Have a great night. And we look forward to, hopefully, a more positive next Touro Talks. Thanks.
[UPBEAT MUSIC]