Can Universities Ban Students for Justice in Palestine?

The legal and ethical issues at play are trickier than might be supposed.

Just days after Hamas’s brutal terrorist attacks on Israeli civilians, students around the country shocked observers with their condemnation of the state of Israel and full-throated support for Palestinians and Hamas. At Harvard, students wrote that they “hold the Israeli regime entirely responsible for all unfolding violence” and called for “a firm stand against colonial retaliation.” Student protesters around the country chanted, “From the river to the sea, Palestine will be free,” a call for the elimination of Israel.

The organization responsible for many such statements and protests is Students for Justice in Palestine (SJP), which describes itself as a national “student movement for the liberation of Palestine.” After continued protests and activism, some states and universities have taken the bold step of banning SJP organizations from campus.

In Florida, the chancellor of the state university system has called for all SJP chapters within the system to be “deactivated.” In a letter to State University System of Florida presidents, he cites the chapters’ “material support” of Hamas as the justification:

Hamas is responsible for this attack and claims it as “Operation Al-Aqsa Flood.” In the wake of this terror, military leaders of Hamas have called for the mobilization of Palestinians in support of the Operation.

In response, and leading up to a “Day of Resistance,” the National Students for Justice in Palestine (National SJP) released a “toolkit” which refers to Operation Al-Aqsa Flood as “the resistance” and unequivocally states: “Palestinian students in exile are PART of this movement, not in solidarity with this movement.”

It is a felony under Florida law to “knowingly provide material support . . . to a designated foreign terrorist organization. . .” § 775.33(3), Fla. Stat. (2019). Here, National SJP has affirmatively identified it is part of the Operation Al-Aqsa Flood—a terrorist led attack.

The SJP toolkit referenced by Chancellor Rodrigues states, “This is a moment of mobilization for all Palestinians. We must act as part of this movement. All of our efforts continue the work and resistance of Palestinians on the ground.” The toolkit also argues that “resistance comes in all forms—armed struggle, general strikes, and popular demonstrations. All of it is legitimate, and all of it is necessary.”

Some states and universities have taken the bold step of banning SJP organizations from campus.Private universities have followed Florida’s lead. On November 6, Brandeis University banned the campus chapter of SJP in response to its “chants and social media posts calling for violence against Jews or the annihilation of the state of Israel.” Columbia University and George Washington University suspended the organization.

Jonathan Greenblatt, CEO of the Anti-Defamation League, has argued that universities that allow SJP’s antisemitic speech to continue could violate Title VI of the Civil Rights Act, which prohibits discrimination “on the basis of race, color, and national origin” in programs and activities receiving federal financial assistance.

But legal analysts and free-expression advocates disagree. They have been quick to point out that banning student organizations from campus is probably unconstitutional and likely won’t be effective in stemming antisemitic sentiment in the long run.

In a letter to Brandeis University, Alex Morey, the Foundation for Individual Rights and Expression’s director of campus rights advocacy, wrote, “It is settled law that denying student group recognition based on viewpoint, speech, or fear of disruption violates free speech principles, particularly with regard to campus chapter groups’ ties to a national organization.”

Adam Kissel, writing in Minding the Campus, points out that there are also due-process issues to consider. He asks, “Even if SJP is committing a felony and telling its student chapters that they are part of the felony, are the student chapters really responsible?”

Research has shown that restrictions on certain kinds of speech don’t curtail the underlying ideas. For example, as Jacob Mchangama documents in his 2022 book, Free Speech: A History from Socrates to Social Media, crackdowns during the Weimar Republic on newspapers that printed Nazi propaganda and Communist rhetoric failed utterly to eliminate sympathy for Nazi and Communist ideas. Mchangama writes that, for many, “Convictions for speech crimes became badges of honor.” By kicking SJP off campus, universities risk making Hamas’s propaganda more salient.

And now, the ACLU, ACLU of Florida, and Palestine Legal have sued the state of Florida, citing Supreme Court cases affirming students’ right to “independent political advocacy,” as well as free association and expression on matters of public concern. More lawsuits will likely follow.

Caught between competing legal interpretations and demands, universities are in an untenable position.Caught between competing legal interpretations and competing demands from various stakeholders, universities are in an untenable position. If these lawsuits prevail in court, what can universities do in response to SJP’s offensive campus activities?

First, universities should be clear that there is zero tolerance for violence. Anyone who uses violence against his or her fellow students, professors, or citizens should be expelled or fired. Universities should also ensure that everyone has a right to speak. Students who interfere with the speech of others should be sanctioned appropriately.

Universities should enforce their own rules. If it’s university policy not to allow masks at protests or to prohibit bullhorns or signs made of anything other than paper, then they should enforce those policies.

Universities and departments should stop taking positions of their own on the current conflict. This only fuels campus division. The Kalven Report, which establishes the principle of institutional neutrality, explains:

The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. […] To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.

Guidance from the Academic Freedom Alliance calls for universities to “take steps to ensure that campus protests do not interfere with the conduct of classes or hinder academic and educational activities on campus.” It explains:

Members of the campus community have the right to engage in vigorous political debate and even to articulate extreme political views, but they have no right to try to intimidate or menace other members of the community, violate university policies or state and federal laws, or interfere with the education or lawful activities of other members of the campus community. Any violations of university policies should be expeditiously investigated and university rules protecting the integrity of its mission should be stringently enforced. Violations of the law, irrespective of their motivation, should be referred to appropriate law enforcement agencies. Any member of the campus community who chooses to violate laws or the university’s own rules and policies should expect to be held accountable for the full consequences of their actions. The university should enforce its policies guaranteeing that the campus serves as a genuine educational and scholarly institution. It is the responsibility of university leaders to ensure that the teaching and research missions of their institutions are not sacrificed on the altar of politics.

Universities should use this moment to model civil discourse, open inquiry, intellectual humility, and compassion. Students will carry with them the lessons they learn now. It’s essential that universities get this right.

Jenna A. Robinson is the president of the James G. Martin Center for Academic Renewal.