President Biden and his Republican rivals are responding to the crisis of campus antisemitism with an approach emphasizing regulation.
Lawyers are responding with threats of litigation.
Such tactics may be useful in pressing university administrators. But regulation and litigation have real limitations, too. In thinking about the best way to respond to the mobs of Hamas sympathizers rampaging through college campuses and terrorizing Jewish students, policymakers and parents might find more success by pursuing, in parallel, a more market-oriented approach, emphasizing competition and choice.
President Trump and President Biden have both emphasized top-down regulation.
In an October 28 speech to the Republican Jewish Coalition, Trump reminded the group, "I signed a landmark executive order fighting antisemitic hate on college campuses, and affirming that discrimination against Jewish students will be aggressively punished as a violation of civil rights."
President Biden has taken a similar tack. "U.S. Department of Education launches antisemitism awareness campaign," was the headline on a May 25, 2023, press release announcing that as part of Biden's "national strategy to combat antisemitism," the education department's office of Civil Rights had released a letter "reminding schools of their legal obligations under Title VI of the Civil Rights Act of 1964 (Title VI) to provide all students, including students who are or are perceived to be Jewish, a school environment free from discrimination."
Yet government regulation of campus antisemitism suffers from all the same constraints that afflict regulation, or government bureaucracy generally, in other contexts. It's slow. By the time any formal rule makes it through the notice and comment process, it's almost time for a new administration. There are problems like "regulatory capture" and the revolving door; if a Securities and Exchange Commission attorney is a future white-collar defense lawyer, then a Department of Education or Justice Department lawyer is a future university general counsel. The bureaucrats who stay are paid on a government scale that doesn't reward results or provide meaningful incentives for outstanding accomplishments. Knowledge is dispersed; a centralized Washington bureaucracy can never quite keep up with what's happening on every campus in real time. It's a blunt instrument; the punishment mechanism under the Civil Rights Act—terminating a school's federal funding—is so severe that schools doubt it will ever actually be imposed.
What about litigation? There the incentives are such that the sharks swim fast toward blood, or toward deep pockets. Instead of clients shopping for lawyers, the lawyers are shopping for clients to sue universities over antisemitism. The law can be a useful tool for fact-finding. But it is also slow, and the results can be uncertain. Edward Blum's Students For Fair Admissions lawsuits against Harvard and the University of North Carolina, alleging discrimination against Asian-American applicants, were originally filed in 2014, and the Supreme Court ruled in his favor only in 2023. The Supreme Court decision produced zero contrition from the universities, and enforcing compliance may require another round of litigation.
What would a free market solution look like? One might say that there's plenty of competition and choice in American higher education already. No one is forcing anyone to attend Harvard or Columbia or NYU, three universities about which Israel's ambassador to the United Nations, Gilad Erdan, recently announced, "No parent should feel comfortable sending their child to these terror supporting institutions." There are plenty of other choices.
The levels of antisemitism do vary from place to place. Some institutions have taken unambiguous moral stands. Fordham University in New York City refused to recognize a Students for Justice in Palestine chapter, reckoning that its advocacy of a boycott of Israel would "clearly conflict with and run contrary to the mission and values of the university." The presidents of Notre Dame, Brandeis, Yeshiva University, Baylor, the University of Massachusetts and the State University of New York were among the recent signers of a statement that said "We stand together with Israel against Hamas." The Hanover, N.H., police recently arrested a couple of students after Dartmouth's president complained about their threatening "physical action" to advance their demand that Dartmouth divest from "Israeli apartheid," according to a report in the Dartmouth, a student newspaper.
The market failure relates less to prospective students applying to colleges and more to the students and faculty members already stuck in places that are hostile. There the issue has to do with the exit costs. Students can transfer, but filling out a whole new round of applications for admissions and financial aid is a hassle. Tenured professors, like law firm partners, sometimes make lateral moves, but transferring research grants and laboratories can be practically complicated. Some of the institutions with the worst antisemitism problems are also prestigious and well-funded.
Congress could make it easier for students and faculty members to escape pervasively hostile campuses by passing a law. Let students who find the campus antisemitism intolerable leave immediately with a full-year refund of tuition, room and board, and let them take their four-year financial-aid packages with them to a new destination. Let professors who want out also leave at the end of the semester, and let them take their endowed professorships, research grants, intellectual property, and graduate students with them to new institutions. Make clear that the destination institutions could include both Israeli universities and colleges (where American families can already use their tax-exempt college savings accounts) and newly created American institutions such as the University of Austin ("Bari Weiss University"). Report the departure numbers publicly to embarrass the institutions, and bar them from filling the student seats with the infinite number of foreign students whose money also helps insulate the American universities from accountability.
At the same time, deregulate the market by loosening or eliminating the accreditation requirements that now protect the cartel of existing colleges from competition from new entrants. Call the whole thing the Albert O. Hirschman Act after the economist who wrote about "Exit, Voice, and Loyalty." He was born in Berlin in 1915 and died in New Jersey in 2012. Or call it the Exodus Act. If it works for Jewish students and professors, consider making exit also easier for other discriminated-against minority groups on campus, perhaps even, say, Republicans.
As research has shown in the context of K-12 education, the threat of exit and competition can spur improvements even at existing institutions.
Sure, the worst abuses, such as physical assaults, will still require law-enforcement involvement. Possible foreign coordination behind the mob is also a matter for prosecutors or other government counterterrorism or immigration officials. The intellectual climate created by tenured professors on these campuses or the self-perpetuating editorial boards of the college newspapers is more difficult to change, which is why some students and professors may decide to leave.
Ideally, campuses wouldn't be "safe spaces" but places where assumptions are tested and beliefs are challenged with civility, in a community that supports teaching and learning and advances truth and knowledge. In too many places, that's not happening. Instead, Jewish students at "elite" institutions are discovering that a substantial portion of their peers and their professors are bigots who blame the Jews themselves for attacks in which Jews were beheaded and burned alive. It may be a valuable education in a way, but it's a painful one to pay tens of thousands of dollars a year for. No amount of litigation or regulation will fix that, but a better market might help.