Colleges Are Stuck Between Bad Options for Fighting Hateful Ideas
Pity Chris Summerlin, the dean of students at the University of Florida. He’s being sued by an anti-Semite, and that’s not the worst of his predicament. So far, judges who have ruled on the case have given mixed verdicts on whether he is likely to win or lose at trial. Summerlin deserves to lose on the merits: He expelled a law-school student for speech that, while morally degenerate, is properly protected by the First Amendment. And––this is the pitiable part––it’s easy to see how he might have concluded that giving a bigot grounds to win a civil-rights lawsuit was his best option.
College deans and administrators keep confronting the same dilemma: They face intense pressure to punish speech that elicits fear or moral disgust on campus. They also have legal obligations—and face countervailing pressure—to refrain from violating the free-speech rights of students. They cannot always do both. The result is cases such as Damsky v. Summerlin—cases that might be avoided under a better approach to fighting anti-Semitism and other hateful ideas.
Preston Damsky was a law student at the University of Florida who was open about his belief that America was founded by and for the white race and that its racial character should be preserved, by force if necessary. According to court documents, he wrote in one assignment that “the founding generations” fought, killed, and died for their sovereignty, and argued, “We are not yet so outnumbered and so neutered that we cannot seize back what is rightfully ours.” To survive “as masters in the ancestral lands of their ancestors,” he wrote in another paper, “the People” must exercise “their revolutionary right to dismember or overthrow” the government, “a process which no deskbound jurist can gleefully look forward to; for it will be a controversy decided not by the careful balance of Justitia’s scales, but by the gruesome slashing of her sword.”
Neither passage was initially deemed to violate school rules, however much they upset Damsky’s peers. But they informed the way that administrators reacted when Damsky went on X on March 21 and posted the following:
My position on Jews is simple: whatever Harvard professor Noel Ignatiev meant by his call to “abolish the White race by any means necessary” is what I think must be done with Jews. Jews must be abolished by any means necessary.
Ignatiev, who died in 2019, was a factory worker who entered academia late in life as a Marxist and gained minor notoriety with his 1995 book, How the Irish Became White. A few years prior, he co-founded a journal called Race Traitor. He believed that whiteness and white privilege were social constructs that impeded working-class solidarity and that people ought to renounce their privilege and become “unwhite,” thus abolishing whiteness. “Without the privileges attached to it, the white race would not exist, and white skin would have no more social significance than big feet,” he once said.
After Damsky invoked Ignatiev in his X post, a Jewish law professor replied, “Are you saying you would murder me and my family? Is that your position?” To which Damsky retorted, “Did Ignatiev want Whites murdered? If so, were his words as objectionable as mine? If Ignatiev sought genocide, then surely a genocide of all Whites would be an even greater outrage than a genocide of all Jews, given the far greater number of Whites.”
The exchange troubled many observers inside and outside the university, though they differed on what to make of it. Should Damsky’s statement that “Jews must be abolished by any means necessary” be received as a portent of murderous violence? Was it the hateful rhetoric of a contemptible but presumably nonmurderous anti-Semite? Or, given the reference to a leftist academic who wanted to abolish whiteness, was it the snide trolling of a shitposter mocking a double standard? No one knew for sure. Even the closest readers of the post could trouble themselves wondering if Damsky’s words implied something more than a call for members of that group to voluntarily abjure their own identity.
Soon, Damsky was suspended, then expelled. In suspending Damsky, the school asserted that he’d “created a material and substantial disruption to the academic operation of the UF College of Law.” When it expelled him, it cited provisions in its student code that prohibit “disruptive conduct” and “harassment”––but both provisions state that whatever they prohibit does not include “conduct protected by the First Amendment.”
In subsequent legal proceedings, the University of Florida would defend the expulsion of the student, arguing that Damsky’s words constituted “true threats,” which are not protected by the First Amendment, and were disruptive. Though public schools can prohibit some speech that is “substantially disruptive to learning,” even if, outside of schooling, the same speech would be protected, there is disagreement about whether and how that precedent applies to higher education. “UF cannot hold its adult students to a standard created for students as young as five years old,” the ACLU stated in an amicus brief supporting Damsky as he sought a preliminary injunction to reverse his expulsion. “That is especially true when the adult is engaging in speech off-campus.”
To win at that preliminary stage, Damsky had to show a substantial likelihood that he would prevail in the case overall. He cleared that high hurdle, according to Judge Allen Winsor. “Some may assume that anyone uttering such commentary is more likely to act violently than someone who does not,” he wrote in his U.S. District Court opinion, but “the test is whether Damsky’s posts constituted a ‘serious expression’ that he meant ‘to commit an act of unlawful violence.’” Acknowledging that “many would not love the idea of attending school with someone who burns crosses, marches in Nazi parades, or engages in countless other forms of offensive expression,” Winsor noted—quoting Justice William Brennan’s landmark First Amendment ruling in Texas v. Johnson—it is still the case that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Nor, the judge ruled, did the university meet the burden for showing the speech to be disruptive in a way that rendered it unprotected.
But the judge’s order to reinstate Damsky was paused pending appeal. And the Eleventh Circuit Court of Appeals ruled that in its estimation, the University of Florida was likely to prevail, because under the precedent set in Tinker v. Des Moines Independent Community School District, “the First Amendment does not protect speech that ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others.’” The trial court, and perhaps future appeals-court judges and the Supreme Court, will decide if they agree with the panel’s ruling that “UF students, faculty, and staff could reasonably interpret Damsky’s posts as threatening violence on UF’s campus,” and that the community “could reasonably interpret Damsky’s posts as promoting extralegal violence, and schools can regulate at least some speech that calls for illegal conduct.” (I hope other judges disagree: Such a precedent would suggest that college students can be expelled for political speech as common as “abolish whiteness,” “globalize the intifada,” and “no justice, no peace.”)
When a college decisively loses at any stage of free-speech litigation, civil libertarians typically point to the loss as a powerful case for honoring the First Amendment if only out of self-interest: Don’t expel a student like that dean did, or your school will get sued and lose too. But colleges are caught between conflicting incentives right now. Few in higher education have forgotten the 2023 congressional hearings in which Representative Elise Stefanik questioned the presidents of Harvard, MIT, and the University of Pennsylvania about anti-Semitism on campus. Each leader was asked, “Does calling for the genocide of Jews violate your rules, conduct codes, or harassment policies?” All attempted nuanced answers. For example, was the call for genocide targeted at an individual, thus amounting to harassing conduct, or was it mere vile speech?
Their answers, though legally sound, elicited a furious backlash. Stefanik called on the presidents to resign. The House passed a resolution calling the presidents “evasive and dismissive” and condemning “their failure to clearly state that calls for the genocide of Jews constitute harassment and violate their institutions’ codes of conduct.” Kathy Hochul, the governor of New York, wrote a letter to college presidents asserting that calls for genocide violate New York’s Human Rights Law, Title VI of the Civil Rights Act, and SUNY’s code of conduct; she threatened “enforcement action” if colleges and universities were found not in compliance. In Florida, Governor Ron DeSantis said that he wanted the college presidents to lose their jobs (the fate that befell Liz Magill, who resigned as Penn’s president because of that viral congressional hearing on anti-Semitism). Donald Trump and his administration would later target those same universities with anti-Semitism probes and regulatory actions that threatened billions of dollars in federal funding while severely constraining their autonomy.
For administrators at the University of Florida, who declined to comment while this litigation is ongoing, the message was presumably clear: If a student calls for the genocide of Jews, deciding whether to punish them based on whether the First Amendment technically protected the speech would be seen as suspect by federal and state officials––and might, if history repeated itself, result in job loss and significant funding losses.
Then along came Damsky with a social-media post that concluded, “Jews must be abolished by any means necessary.”
“Confronting the fact pattern in his case, an institution might well ask their legal advisers if they could justify punishing the speech,” Jackie Gharapour Wernz, an attorney who advises educational institutions about complying with nondiscrimination laws such as Title VI and Title IX, told me. And she could imagine a legal adviser signing off on a punishment, despite its risks. “If they act, they may get sued for violating free-speech rights,” she explained. “If they don’t act, they may face complaints or lawsuits from students or employees claiming they’re ignoring or contributing to a hostile environment. In a very real sense, the institution is choosing which lawsuit it wants.” Institutions may decide to consider a range of risks, she said, “including political pressure, federal attention, and backlash from different parts of the community, and sometimes those pressures drive decisions as much as the legal merits.” An institution might even want to lose in court, she said, “because that gives them cover later to say, We actually can’t punish this speech.”
Damsky’s lawyer, Anthony Sabatini, believes that the political climate is affecting what would normally be a simple case about unambiguously protected speech. “UF clearly tried to use heightened political concerns about antisemitism (or what gets called antisemitism) to pressure the district judge, as you’ll see in their pleadings,” he told me via email. “The Trump administration is clearly using Title VI to unlawfully attempt to stop lawful criticism of Israel by equating it with antisemitism and will lose in court on that.”
Of course, college administrators might also punish speech of the sort Damsky deployed out of a desire to oppose anti-Semitism or to protect the educational experience of Jews. Kenneth L. Marcus, the founder and leader of the Louis D. Brandeis Center for Human Rights Under Law, a legal organization focused on fighting anti-Semitism, argues that anti-discrimination law is a vital tool for protecting the rights of Jewish students and any others targeted on the basis of their race, color, or national origin. “Whenever we take seriously our civil-rights laws, there will be questions about conduct that falls in a gray area between protected speech and unprotected activity,” he told me. “Just because there are some tough cases doesn’t mean that we should throw out the rules altogether.”
It is dangerous, he argued, “to minimize threats and to assume that persons involved in threatening communications don’t mean what they’re saying seriously.” In the Damsky case, “administrators simply cannot wait for apparently violent threats to turn lethal before they take action,” he argued. “Can you imagine if the university had done nothing and then the speaker actually followed up on his apparent threat by making an actual effort to abolish Jews by any means necessary? The university would at a minimum be held liable for its failure to exercise due care, and it should be.”
While I agree with Marcus that “the world that we’re living in since October 7, 2023, is one in which Jewish Americans and others face continuing and real threats,” and that anti-Semitism must be fought in any healthy and morally decent society, there is no simple correlation between acts of violence and rhetoric of the sort Damsky spewed. His words clearly don’t meet the long-standing Supreme Court threshold for “true threats,” and insofar as a student is secretly planning violence, expulsion presumably wouldn’t stop them. I also doubt that compelling colleges to punish students like Damsky, despite the lack of a strong legal case, is an effective way to fight anti-Semitism.
While no one, least of all Jews, deserves to live in a world with anti-Semites, nonviolent ones included, we do live in such a world. In a country where Tucker Carlson and Candace Owens expose massive audiences to the most nonsensical conspiracy theories, and as vile an anti-Semite as Nick Fuentes has more than 1 million followers on X, insulating schools from anti-Semitism is impossible. Administrators cannot make it disappear. They can, however, help students improve at countering bad ideas.
The academic philosopher Dan Williams recently argued that establishment institutions “have clung to a set of habits and norms—most fundamentally, an aversion to engaging with illiberal ideas to avoid ‘platforming’ and ‘normalising’ them—adapted to a world that no longer exists.” From his perspective, which I find persuasive, the modern internet makes this sort of aversion unwise: Gatekeepers don’t exist in the digital era, and “once established institutions lost the privilege to control the public conversation, they acquired an obligation to participate within it.” I’d feel more hopeful about the ability of American institutions to adapt if universities prepared the rising generation to rebut history’s worst ideas rather than trying to suppress them.
If Damsky returns to law school, some classmates will treat him as a social pariah who deserves scorn. Some will fear for his everlasting soul as he transgresses morality by indulging hatred. To forbear bigots is no easy thing, and it is not for me to judge how others do it. But I hope some of his classmates would use the presence of an anti-Semitic white nationalist to hone the strongest and most persuasive arguments against his views. I hope some would study the example of Daryl Davis, the Black musician who has successfully talked multiple members of the Klu Klux Klan into giving up their hoods, and that others would follow the example of the New College of Florida students who converted a white-nationalist classmate into an anti-racist activist.
Anti-discrimination laws have a role to play in academia: College administrators have an obligation to ensure that no student is denied educational opportunities on the basis of their race, religion, ethnicity, or national origin, and that, insofar as their student bodies include bigots, they don’t harass or bully Jews or anyone else. But the policing of speech that is protected by the First Amendment is both unlawful and insufficient. Perhaps, in a world where hateful speech can be distributed to mass audiences more easily than ever before, it’s even counterproductive.