Professor Marshall Breger entered into the debate over the Ivy League presidents discussion of genocide and antisemitism in an op-ed in the Winter 2024 Moment magazine. Breger agreed that the Presidents (two of whom have since resigned) failed to ‘read’ the congressional hearing room and responded to congressional questioning with crabbed legal language rather than moral clarity. Nonetheless, Breger suggests that while antisemitism is a growing scourge on campus much of the hearing was largely about ‘virtue signaling’ and the culture wars, rather than the proper regulation of hate speech.

In his op-ed, Breger argues that:

1. Universities have been grossly hypocritical in censoring speech and speakers that are seen as are inimical to black and LGBTQ concerns while treating speech which offends the Jewish community differently. Not withstanding this hypocrisy, Breger suggests that we should not make social policy based on schadenfreude.
   
   
2. While physical harassment should obviously be punished as should threats directed against individuals, how one deals with student demands for “emotional” safety requires greater nuance. While a claim of emotional offense may under certain circumstances provide recourse in law, one must ask whether you are entitled to feel comfortable in an academic setting whose very purpose is the contest of ideas. And further whether the test for feeling comfortable is subjective or objective and whether speech should by controlled by the sensitivity of the hearer.
   
   
3. Similarly, determination of what is a genocidal statement is far from clear. Most of the examples offered are not explicit calls for genocide but rather inferences drawn from slogans such as “free Palestine” or “from the river to the sea”- where the student chanters almost inevitably deny genocidal intent. How are administrators supposed to reasonably parse these claims and counterclaims.
   
   
4. He further criticizes school administrators for not acting proactively to underscore what is licit and what is illicit protest. Indeed, most of the student and faculty excess in these times occurs because administrators in the past chose to cast a blind eye and failed to proactively face up to their responsibilities.

Breger underscores that “moral clarity” in addressing these questions does require attention to “context.” A copy of his op-ed can be found here.

Breger teaches courses in Pubic International Law; Legal Issues of the Middle East Peace Process; and a seminar on legal issues of Jerusalem at The Catholic University of America Columbus School of Law. His most recent book, The Contest and Control of Jerusalem's Holy Sites, was published last Fall by the Cambridge University Press.