You’re a Penn alumnus, you taught there, and then you became a donor to the university. How long have you been worried about what’s going on there and in elite US education in general?

I began to be concerned when I taught there back in 2008 and 2009, and saw that the students came across as much more entitled than I remembered from my time as a student. They were less respectful of faculty, and disconnected from the reality of the world. In my time, there was a work ethic that seemed to be missing now.

As my relationship with the university developed and I joined the board of overseers of the engineering school in the early 2010s, I saw a shift toward the pseudo-liberalism that was promoting points of views that didn’t seem to have intellectual validity, a rejection of the search for truth that I associated with institutions of that caliber.

Was there a standout, Closing of the American Mind-style moment that typified the shift, or more of a sense that the institution was losing its way?

It was a sense that came from observing the Middle Eastern and Jewish studies teaching. These were parts of the university that I would have expected to represent a broad spectrum of voices, and yet I found there to be a narrow anti-Israel and anti-Jewish sentiment from faculty there that was obvious when they would speak out on some event. I knew some PhD students doing work in departments who found that there wasn’t room for traditional Jewish ideas, even in Jewish studies departments. The faculty that I became aware of seemed to be very negative toward Israel, Judaism, and Jewish law in a way that was unjustified by what I thought of as the academic disciplines they should be following.

So, you were privy to a process that was happening behind the university walls. What led you to speak out about it?

Well, two of my sons went to Penn, so I got involved with the Hillel and with the Orthodox community at Penn, and I was already involved with Chabad and MEOR on campus since the early 2010s. My understanding from the rebbeim active there was that the Jewish community was shrinking dramatically over the course of the 2010s. It got to the point that the formerly-vibrant Orthodox community where there were multiple minyanim every day, was reduced to a question of whether in a few years, there’d even be enough men for one minyan on a regular basis.

Members of the board of Hillel got together and studied some of the data, looking at the admissions statistics, and saw there was a definitive decline in the acceptance rates and the number of matriculants at Penn who were Jewish, and even just white Americans. There was a general shift in the demography of the student body moving toward more people of color, more international students, but fewer Jews and fewer white people in general.

Is there any evidence that this was an intentional shift, an attempt to change the makeup of the student body?

There’s no smoking gun in the form of documentation, but that statistical evidence is significant. I have a number of friends whose older children got into Penn, and then a few years later, the younger children didn’t get in, when I know that the younger student was as good a student or better than the older sibling. So, we definitely saw anecdotal evidence of the change in policies of admissions. We saw it from the college guidance counselors from Jewish schools across the East Coast schools who talked about how it was harder and harder for them to get their top students into schools than in previous years. So no, I don’t have any concrete evidence, just experiential and statistical evidence.

Fast forward to October 7, which was the moment when many people saw that the worsening atmosphere on American campuses was too big to ignore. What happened to you then?

For myself, and a number of other donors, October 7 wasn’t where it all began. Back in September, we heard that the Palestinian Writes Literature Festival was going to be held at Penn and saw that the list of speakers and panelists included people like Roger Waters and Mark Lamont Hill — noted anti-Semites, and some who had direct affiliations with Hamas.

A number of us, including Mark Rowan, who’s a prominent billionaire, who has been leading the charge against Penn, started objecting. We fought with the administration to have them cancel it, or to have them at least condemn it. I actually didn’t want them to cancel it, because it was a legal activity according to school rules. But I certainly wanted them to question the invitation of these anti-Semites, but the administration wouldn’t do it. In fact, Liz Magill wrote a letter saying that she fiercely supported the rights of these people to have this event. Not only did the event take place, 20 or so different departments within the university signed onto a letter that supported the conference, and condemned the administration for even questioning the right for them to have it.

Seeing the groundswell of support throughout the college demonstrated to me and other people, the depth of corruption at the university; that there were so many people who were going to put their name to supporting terrorism and anti-Semitic activities on campus.

Given that background, you can’t have been under any illusion about what the university’s response to October 7 itself would be.

It was still deeply wounding. We were a nation under attack, we’d had the most heinous acts since the Holocaust perpetrated against us, and the reaction from Penn’s administration was to express concerns about Islamophobia, and sympathy for the people of Gaza who are now being attacked by Israeli soldiers. The focus of their messaging was clearly on one side. A bunch of prominent families that had donated a lot of money to the school — far more than I have — complained about this. But the administration couldn’t say what we wanted them to say because they didn’t believe what we wanted them to believe.

I recognized that early, but a number of other donors didn’t — it took up until the congressional testimonies to really understand that it’s not a matter of saying the right thing in the wrong way. The core of the issue is that they are people who support the promotion of anti-Semitism.

When put as starkly as that, it’s breathtaking. How can we get inside the heads of seemingly reasonable people who actually run a university in this way?

There’s a combination of factors. First, it’s a question of funding. The sovereign wealth finds of authoritarian foreign governments have spent the last decades funding American universities to the tune of tens of billions of dollars. That buys them influence over the education that our kids get. One report showed that between 2014 and 2019, the Qataris, Saudi Araia, China, and Russia, among others, spent $13 billion.

These are our enemies, and they are trying to undermine Western civilization by changing how our children are taught. But the interesting thing is not so much that they’re buying it, but that the administrations of the universities are selling it.

Why would the universities allow our enemies to buy the intellectual contents of what they’re teaching? The only conclusion I can draw is that they agree with it enough to be willing to be paid to propagate it.

Surely, though, the obvious explanation is far less nefarious than an anti-American agenda: that these institutions want more funding?

Look, this is part of an intellectual movement that has been gathering momentum for the last 40 to 50 years. I think of it in this way: For the first 175 years of American history, America was defined by pride in the American way of life.

We invented representational democracy, we invented the American Constitution, and we were arrogantly proud every July 4th. We would show how thrilled we were with ourselves for having created democracy, as the Western world knows it.

But over the last 50 years, somewhat coinciding with the civil rights movement and the Vietnam War, and with this influx of foreign money into our colleges, there’s been this shift on behalf of part of our intelligentsia, part of our academy. They’re redefining America as not a country proud of its founding in 1776, but a country deeply ashamed of and needing to atone for its founding in 1492 and 1690, on the backs of the Indians that we committed genocide against, and the Africans that we enslaved and built our economy on.

There’s nothing untrue about those things. But there’s a question of what it means to be American. I think that half of America still thinks we’re defined by the innovation of the Constitution, and the Bill of Rights, and there’s a growing faction who define themselves by genocide, and colonialism, and oppression.

Those people are then looking around the world and saying, “Where is this being committed elsewhere?” And they decided to stick it on Israel for being white colonialists versus people of color even though the facts don’t justify that claim.

The left began to sour on Israel decades ago, when Israel reversed the David and Goliath paradigm.

Yes, but that reversal, and the explosion of anti-Semitism, is a wider American issue, not just a Jewish one. The resurgence of anti-Semitism is a symptom of the whole oppressor/oppressed mindset. This is a problem in America about America. If there were no Jews in America, there would still be a problem. They would just find some other group to use as the punching bag for, by their definition, oppressing people.

What did you do when you saw Penn’s response to the massacre perpetrated by Hamas?

I wrote an open letter, which they never responded to. I noted that “My only conclusion, from your fierce support for the Hamas-affiliated speakers at the Palestine Writes festival, followed by your equivocating statements about the heinous acts of barbarism perpetrated by the same Hamas you allowed these speakers to promote, from your failure to call out evil, is that you are ambivalent to the unprecedented evil their acts represent.”

I’d had a meeting a few weeks before the Palestine festival with the dean of the engineering school, where I had committed verbally to a $250,000 gift to honor a professor who passed away last year, who was a mentor of mine, and I was going to fund a fellowship program in his memory. So, I wrote that I was pulling my funding and urged all self-respecting Jews to disassociate themselves from the university.

Was that the standard response from other donors?

The most prominent message that I heard from other donors was that they want the president and the board chair replaced with someone else. And my letter basically said that there’s no point. The administration is just representing the values of the school, which is that they support anti-Semitism on campus.

Every institution has a mission, and if this is your mission, I don’t think any self-respecting Jews should be a part of it. And I think that the Jewish faculty, the Jewish students, and Jewish donors should find someplace else to learn, to teach, and to study.

Whether we like it or not, the Ivies educate America’s future leaders, so walking away has a cost. Are there sufficient levers among fair-minded people to actually impact the direction of institutions like Penn and Harvard, or are they a lost cause?

I learned a long time ago as a philanthropist that my job as a donor is not to buy a share of a nonprofit institution. That’s the wrong model. The model is that you find institutions that represent your values, that will act with your money in a way which you’d be proud of. Buying a different mission from Penn than the one that they currently stand for, for example, is a problematic approach, which will in the long run never work.

They’ll do what they want to do. They’ll contort themselves, to fit within the bounds of what you’re telling them. They’ll fire a president, or they’ll replace a board chair, or they’ll make a better statement. But fundamentally, they are who they are. And now we know who they are. There are lots of schools out there that don’t support anti-Semitism, even if it is legal, and we should find those institutions and support those. These institutions have shown themselves to be evil at the core, and we now know it, and we should use that knowledge to steer clear of them, and do our best to find places that are not infested with evil.

In other words, Jews at these historic elite institutions where so many Jews have starred face a bleak future.

That’s been our history. We’re soft now, because we haven’t experienced it in a while, but in the 1920s and 1930s, there were Jews in European colleges who faced significant anti-Semitism. Some of them got an education, and some of them didn’t. We didn’t think we were doing that anymore in America, but it turns out we are. So, I think that we just need to recognize we’re in that environment and for the most part, seek out places such as historically black colleges and Christian colleges where belief in G-d is still held as a value. And there are some other colleges that are declaring that they stand up against terrorism, and they won’t stand for anti-Semitism on campuses.

If I’m going to go to a Western, liberal American college, because that’s a place for me to get the education I need, I’m going to be sure to defend myself against the culture there.

I also think that if en masse, Jewish students stop going to Ivy League schools, they will become a lot less respected as institutions. I think that the schools that they decide to go to would become more respected. We’re a valuable commodity in terms of our students going into schools, and I think we’re undervaluing ourselves by thinking that we need to beg our way back into the schools and force them to make us safe there.

Taking the Easy “Yes”

By Rabbi Dr. Moshe Goldfeder

Last week, the presidents of Harvard, MIT, and the University of Pennsylvania were called to testify before Congress about the alarming rise of anti-Semitism on their campuses, and their tepid responses to it, in the wake of October 7.

By now, you have probably heard about the trio’s horrendous overall performance, punctuated by their smug inability to respond to the simple question of whether calling for the genocide of Jews violates their schools’ codes of conduct. Since that time, the president of UPenn has stepped down, and support for the other two is wavering.

In case you are wondering, their answer should have been an unequivocal “yes, it violates our polices.” The right to free speech is fundamental, but it does have limits: The First Amendment is not a pass to threaten, harass, intimidate or otherwise violate the rights of others.

For the record, even those pundits who (incorrectly) defended the university presidents’ testimony as being legally correct, if morally tone deaf, had to admit that it did represent a glaring double standard. Each of these universities has in recent years protected other minority groups from even “micro-aggressions” by effectively and ruthlessly shutting down speech that their leaders find offensive.

Struggling to answer whether calls for genocide against Jews constitutes bullying, after you have already officially labeled “fatphobia” as “violence” and “using the wrong pronoun” as a form of “abuse,” is pathetic, and to see these schools pretending that they are genuinely concerned about free speech all of a sudden is nothing short of laughable. In the Foundation for Individual Rights and Expression’s 2024 College Free Speech Rankings, for example, out of 248 US campuses, Penn and Harvard were ranked 247^th and 248^th, respectively. If you are only concerned about shutting down speech when that speech targets Jews, well, there is a word for that.

How Free Is Free Speech?

The First Amendment does not protect trespassing, vandalism, harassment, assault, or the destruction of property. Nor does it protect speech that is not meant to inform or persuade, but to disrupt lawful endeavors —activities like going to the kosher dining hall or studying in a library. The First Amendment does not protect someone who is making true threats, nor does it protect intimidation — “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

Just a few months ago, in Counterman v. Colorado (2023), the United States Supreme Court clarified that this does not necessarily mean that the person speaking actually intended to threaten the victim. Rather, the Court imposed a recklessness standard — i.e., the First Amendment does not protect a person who consciously disregards a substantial risk that his communications would be viewed as threatening violence. To be clear, calling for the genocide of Jews, as the pro-Hamas student groups on campus have consistently been doing, does create a hostile environment for Jewish people on campus, violates Title VI of the Civil Rights Act of 1964, and is not protected by the First Amendment.

It was obvious that all three university presidents were reading off scripts written by their respective attorneys (several of whom were sitting behind them and nodding throughout the hearing). The question then becomes: What now? What is the critical error that their lawyers (and the general counsels at other universities where Jewish students are being targeted) have made in failing to stand up for Jewish people, and how should they immediately correct it?

The answer is simple, and it is exactly what students, parents, donors, and the government alike should all be demanding from these institutions: They should continue to respect the First Amendment, but they should apply the appropriate standard for speech on a campus.

From a legal perspective, it is easy to see where the university legal counsels’ confusion specifically arose. Those horrible answers were written under the assumption that the only limits a university can put on student speech are the limits contemplated in the foundational Supreme Court First Amendment case of Brandenburg v. Ohio (1969).

In that case, regarding speech at a KKK rally, the Court held that a state could only punish speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg is famously a very high standard, and that is precisely where the universities are hiding: Despite the hundreds of anecdotal incidents from the last two months, and notwithstanding all of the well-known studies confirming that inflammatory discriminatory anti-Semitic rhetoric leads directly to anti-Semitic violence, officials are telling students and parents and now Congress that their hands are tied because, in most cases, there has not been direct enough incitement.

Campus Standards Are Different

Now, the truth is that even under the Brandenburg standard, schools can still impose reasonable time, place, and manner restrictions. As the Court in Grayned v. City of Rockford (1972) explained: “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”

So even under that paradigm, any activities that disrupt the educational enterprise and functioning of a school may be restricted. Common sense dictates that rallies celebrating calls for anti-Semitic genocide disrupt the educational enterprise and functioning of a school because they leave some students genuinely fearful for their lives.

But that argument is also unnecessary, because Brandenburg is absolutely the wrong standard for schools to be using, and university presidents and lawyers need to correct that mistake as soon as possible.

In Tinker v. Des Moines (1969), the Supreme Court explained that the Constitution does allow for schools to shut down speech that will “materially and substantially interfere” with the “requirements of appropriate discipline” in the operation of the school” or that “invad[es] the rights of others.” That is the standard that these schools must now vigilantly enforce.

Of course, private colleges and universities, like Harvard, Penn, and MIT, can restrict certain speech, conduct, and demonstrations, in most cases, without triggering any constitutional issues. But even a public university is not a public street, and the rules for what speech must be allowed on each are very different.

The Supreme Court in Healy v. James (1972) cited Tinker to hold that university officials do not have to tolerate student activities that breach reasonable campus rules; interrupt the educational process; or interfere with other students’ rights to receive an education. (This is especially true when the student speech is happening in school-sponsored forums, or is reasonably perceived as somehow bearing the school’s imprimatur.)

The Court has also repeatedly held (in Bethel v. Fraser [1986] and Hazelwood v. Kuhlmeier [1988]) that schools have even greater latitude to limit student expression if they can establish a “legitimate pedagogical concern.” Ensuring that all students — including Jewish students — have a safe and harassment-free environment in which to learn should be an overwhelmingly legitimate pedagogical concern.

Under the Tinker line of cases, schools do not even have to wait for a breach to actually occur; administrators can act if they can “reasonably forecast” that the expression in question would disrupt school discipline or operation, or violate the rights of other students. In Melton v. Young, for example, the Court ruled that schools could prohibit the wearing of a Confederate flag jacket because it was reasonable to assume that it would be disruptive in an environment of heightened racial tension.

Waving a Hamas flag and cheering on slaughter, as bodies are still being identified and hostages are still being held, announcing solidarity with the “resistance” and that “armed struggle” — i.e., murder —“is “legitimate,” and yes, calling for the genocide of Jews, are all behaviors that are no less likely to cause a disruption than a jacket.

Tinkering with Free Speech

Under Tinker, it is more than reasonable to forecast that there will be substantial disruptions that would violate the right of Jewish students to a non-hostile educational environment if groups are allowed to host events that glorify and celebrate the murder of Jews.

Schools can and must act now to prevent that from continuing to happen, using both common sense and the relevant case law to draw the appropriate line. The limits on the First Amendment are there to help the government with its primary responsibility —to protect all of its citizens from harm —and authorities must be constantly vigilant to enforce the law correctly.

Regardless, the answer to “what now?” then, is this: Everyone calling for change should articulate what that change is, and institutions fixing their policies should clearly explain how they will “tinker” with their free speech formulas so that the next time their leaders are asked if calling for a Jewish genocide is problematic, the answer can just be “yes.”

Rabbi Dr. Moshe (Mark) Goldfeder is  an international lawyer and director of the National Jewish Advocacy Center.

(Originally featured in Mishpacha, Issue 990)