A wave of repression is sweeping the United States. Prominent institutions, from the House of Representatives to scores of major law firms to a small but growing number of universities, are condemning, banning, and even seeking to criminalize expression of the most basic aspirations for Palestinian freedom.
And contrary to the pervasive “both sides” framing of rising antisemitism and Islamophobia, this repressive wave is plainly asymmetric: there is no comparable institutional effort to suppress endorsements of the current Israeli state, despite its commitments to “Jewish supremacy” (as Israeli human rights organization B’Tselem and others describe it) and ongoing commission of war crimes like collective punishment of Gazans (even setting aside the “genocide” question). The ubiquitous justification offered for this stark asymmetry is that calls for Palestinian freedom constitute threats of antisemitic violence against Jews in Israel and the U.S. alike.
This repression offends not only civil libertarian commitments to free speech and related ideas of academic freedom, but also, I argue, civil rights commitments to nondiscrimination.
More specifically, this essay charts a legal theory that reflects a broader moral critique: employers violate federal law’s prohibitions of employment discrimination when they threaten to fire, refuse to hire, or otherwise discipline employees who endorse Palestinian freedom. Here I refer in particular to conceptions of Palestinian freedom that reject the modern Zionist project of a specifically Jewish state in the land of Israel/Palestine, as Israel has declared itself to be since its founding (compare earlier Zionisms not committed to Jewish nationalism or more recent “post-Zionism”).
Most concretely, this analysis applies to the law firms that have sought to exercise collective economic power to pressure U.S. law schools to repress pro-Palestinian student advocacy. It may also apply to universities, in their capacity as employers, that construe slogans such as “From the river to the sea, Palestine will be free” or “Free Palestine” as violating campus prohibitions on antisemitic conduct and thus subject speakers to discipline.
The basic argument is this: translating an embrace of Palestinian life and freedom into a call for Jewish death relies on pervasive racist and anti-Muslim stereotypes of Palestinians as endemically hateful, violent, deceptive, and hostile to Jews, Israel aside. Employment decisions based on such stereotypes violate Title VII’s prohibitions on race, national origin, and religious discrimination. This is true both for decisions about individual workers and for decisions to adopt general policies, including facially neutral ones.
Importantly, employer condemnations of pro-Palestinian speech and advocacy generally do not purport to rest on political or viewpoint discrimination but instead claim to operate above politics. Setting aside the First Amendment restrictions on government institutions, including public universities and other public employers, federal employment discrimination statutes permit employers to hire or fire their employees based on their political viewpoints. Thus, Title VII of the Civil Rights Act of 1964 (proscribing race, gender, national origin, and religious discrimination in employment) would raise no bar to the nation’s leading law firms simply demanding that their employees pledge adherence to a U.S. foreign policy of unconditional support for Israeli war efforts. But, unsurprisingly, the law firms are not taking that tack. Instead, they invoke universalist values prohibiting discrimination and harassment, including in antisemitic forms. Similar frames underlie other recent pronouncements, including the House of Representatives’ censure of Rep. Rashida Tlaib that cast her affirmation of “from the river to sea” as a “a genocidal call to violence to destroy the state of Israel and its people.”
Any critique of the repressive wave requires unraveling the equation of calls for Palestinian freedom with genocide against Jews. And doing so forms the crux of the following antidiscrimination analysis. On its face the equation is a provocative non sequitur. It immediately diverts attention from the fact that ruling affirmations of Palestinian freedom out of bounds, but not the freedom of other groups, readily provides what is known as a prima facie case of disparate treatment, also known as intentional discrimination. What, then, could plausibly provide a nondiscriminatory rationale for insisting on Palestinian unfreedom?
From Palestinian Freedom to Antisemitism?
The logic, of course, is that Palestinian freedom in the land “from the river to the sea” is fundamentally incompatible with sovereignty over that land by an Israeli state constitutively committed to being specifically and exclusively a Jewish state (as opposed to a binational one). Israel’s Basic Law declares it a state “of the Jewish people” where “national self-determination is unique to the Jewish people.” This specifically Jewish character manifests in granting all Jews anywhere a “right of return” to settle in Israel with no further questions asked, while barring the return of specific Palestinians and their immediate descendants driven from their identifiable homes and communities in the violence accompanying the formation of the State of Israel less than 80 years ago.
It also reflects an Israeli state that treats as second-class citizens those Palestinians who currently reside within its internationally recognized boundaries, even setting aside its treatment of Palestinians in Gaza and the West Bank widely characterized as a system of apartheid. Although many self-described liberal or left Zionists today object to these last features that enact discrimination against non-Jews under Israeli jurisdiction, the common denominator remains the avowedly Jewish character of the state that allows for specifically Jewish self-determination reliant on, among other things, the asymmetrical laws of return to maintain Jewish demographic dominance. So, for present purposes, let’s accept an undiluted understanding of a cry for a “Free Palestine” “from the river to the sea” as a call to dismantle the Zionist character of the Israeli state so as to make way for one where Palestinians can be free and equal. Of course, some speakers might use it simply as a more general cry for Palestinian freedom.
And yet, even on this avowedly anti-Zionist interpretation, it remains bizarre to read a call to overthrow state-sanctioned Jewish supremacy in Israel/Palestine as an endorsement of genocide against Israeli Jews; a yet further leap is required to reach Jews like me living in the U.S., more than an ocean away in an entirely different geopolitical context.
Recent arguments for repressing pro-Palestinian advocacy typically leap across this chasm by conflating the Israeli state with its Jewish residents in conjunction with metaphors of destruction. The law firm letter, for instance, invokes the specter of “rallies calling for the death of Jews and the elimination of the State of Israel.” The letter does not deign to cite any evidence, so readers cannot be sure to what this refers, but note how it slides between Jewish death and “elimination” of the State of Israel. As far as I am aware, none of the widely publicized campus rallies to which the letter presumably refers have involved collective calls for the death of Jews. But they have, to be sure, included slogans like “Free Palestine” and “from the river to the sea.” And it is such slogans that have formed the centerpiece of extensive media coverage alleging widespread antisemitism on university campuses and to which, presumably, the letter refers.
Those seeking to repress such protest treat these slogans as if they called for Jewish death purely because they entail anti-Zionism in the sense described above. This sleight of hand is facilitated by the language of “elimination” or “destruction” of the specifically and exclusively Jewish character of the Israeli state, as if that necessarily entails elimination or destruction of the Jewish lives such a state privileges over Palestinian ones. It does not. As some Jewish undergraduates have wisely observed, “Liberating all of Palestine requires revolutionary change: not an eradication of Jews from the land, but a total dismantlement of the apartheid regime occupying it.”
Some analogies may clarify this distinction between the Jewish state and its Jewish citizens. Consider Irish Catholic nationalists who reject British rule in Northern Ireland. Surely it is absurd to claim that seeking to “eliminate” British sovereignty over Northern Ireland is tantamount to calling for the expulsion or genocide of Irish Protestants residing there. Or that to call to “Free Ukraine” and “destroy” Russian rule in territories occupied through the current war is to seek the slaughter or exile of ethnic Russians in those territories. Or that organizing to “smash” South Africa’s apartheid state was a genocidal campaign against white South Africans. It’s just absurd.
One might readily draw distinctions among these various conflicts in their underlying merits and proper resolution, but what matters here is the basic—and obvious—distinction between transforming the nature or identity of the state exercising sovereignty over a land and killing or expelling populations that largely support or are favored by the extant regime. To be sure, there remains ample room for policy arguments (including hard-boiled pragmatic ones) defending a two-state solution that would preserve a Zionist state in part of the land of Israel/Palestine. Such arguments, however, deserve reasoned analysis rather than blanket insulation from scrutiny by suppressing any disagreement as ipso facto a call for ethnic cleansing.
Furthermore, as Palestinian scholars and activists have continuously explained in the face of longstanding but less prominent repressive efforts pre-October 7, “from the river to the sea” and related slogans far predate not just the brutal October 7 Hamas attacks, not just Israel’s 15+ years of blockading Gaza to create a de facto open-air prison for millions, but even the 1987 formation of Hamas itself. As Maha Nassar explained in the famed Jewish newspaper Forward in 2018, the slogan “gained traction in the 1960s” as “part of a larger call to see a secular democratic state established in all of historic Palestine,” rejecting the founding partition of 1948. As Yousef Munayyer explained in Jewish Currents in 2021, the slogan calls for “a state in which Palestinians can live in their homeland as free and equal citizens, neither dominated by others nor dominating them.” And as the 2020 Jerusalem Declaration on Antisemitism (produced by hundreds of scholars in related fields) concludes, “It is not antisemitic to support arrangements that accord full equality to all inhabitants ‘between the river and the sea,’ whether in two states, a binational state, unitary democratic state, federal state, or in whatever form.”
From Nonsense to Discrimination
To return to the Title VII analysis specifically, we first have a prima facie case built on singling out for exclusion the affirmation of Palestinian freedom. Next, we have a proffered rebuttal that relies on the bizarre conflation of state and population, including a double standard in doing so. Furthermore, that justification flies in the face of an internally coherent, morally conventional explanation promulgated by the people closest to the U.S.-based Palestinian advocacy at issue.
The antisemitism rationale for repressing “from the river to the sea” and the like is “unworthy of credence,” in the terminology of Reeves v. Sanderson Plumbing Products, a leading Supreme Court opinion on structured analysis in employment discrimination cases. Certainly, a reasonable jury could so conclude. Reeves held that rejecting the employer’s explanation, combined with the initial prima facie case, supports drawing the ultimate inference of discriminatory intent. Here, that inference is particularly strong because the explanation’s weakness rests in part on its reliance on double standards regarding Palestinian liberation, rather than merely pointing toward some nondiscriminatory explanation other than the employer’s stated one.
But there is more. How can we understand the offer of such a flimsy excuse? Why turn so quickly to an inflammatory charge of murderous hatred while eschewing the interpretation actually offered, one coherent with the values of a multi-racial, multi-religious, democratic society widely affirmed in the U.S.?
A sadly compelling answer is that the otherwise bizarre leap from Palestinian freedom to Jewish genocide comports with familiar, widespread but nonetheless abhorrent anti-Muslim and specifically anti-Palestinian stereotypes antithetical to the values of U.S. civil rights laws (on the interplay among religious, racial, and national origin categories, see here and here). As Sahar Aziz has shown, a “Palestinian terrorist” trope has long shaped efforts to repress opposition to U.S. policy in the Middle East and has drawn on portrayals of “Arabs as aggressive, scheming, and beastlike.” Similarly, as Khaled Beydoun has explored, there are clear linkages between stereotypes of “Muslims as inherently violent and unassimilable” and the “belief that expressions of Muslim identity are correlative with a propensity for terrorism.” These stereotypes are connected as well to attributions of intolerant, anti-democratic illiberalism within a “clash of civilizations” framework.
Acknowledging these stereotypes can help explain how cries for freedom can be misconstrued as genocidal demands—even giving rise to cases of literal mishearings—and how harsh critiques of the ethno/religious-nationalism underpinning the Israeli state project can be read as antipathy to the Jewish people in whose name Israel claims to act. Such stereotypes make sense, too, of the inveterate, even contemptuous disbelief that Palestinian-American students, activists, scholars, and elected officials could mean what they say when, in Rep. Tlaib’s words, they describe “from the river to the sea” as “an aspirational call for freedom, human rights and peaceful coexistence”—a statement that the House censure resolution shockingly cites as further evidence of her perfidy.
To be sure, in some contexts, “from the river to the sea” can have eliminationist meanings. But those seeking to indiscriminately ban and punish the phrase and its users in U.S. campuses and workplaces make no effort to draw the distinction Peter Beinart recently offered, between the same words “coming from an armed Hamas member” versus from one with “a vision of equality and mutual liberation.” And the quickness to associate anyone in the U.S. advocating for Palestinian freedom with the former — pro-Israeli partisans routinely characterize Palestinian freedom demonstrations as pro-Hamas — reflects precisely the stereotypes recounted above. By instructive contrast, I have seen no institutionalized effort to charge U.S. demonstrators waving the Israeli flag with Israeli high officials’ recent bloodthirsty, bigoted, and dehumanizing statements about Palestinians as they prosecute the war accordingly, nor with the overtly genocidal rhetoric of right-wing Israelis (including elected officials in the governing coalition) conducting “flag marches.” Given the flag’s multivalent meanings, such distinctions are entirely appropriate, but the difference in interpretative generosity afforded to the two groups speaks volumes.
Of course, questions of intent and causation are not susceptible to certain proof in most cases. Nonetheless, at minimum, a reasonable jury could readily conclude that punishing workers based on uttering stock phrases of pro-Palestinian advocacy—when explained in terms of fighting antisemitism rather than simply a political test of pro-Israel policy preference—reflects disparate treatment in violation of Title VII.
From Fear to Discrimination
Some institutions and employers seem to side-step the issues canvassed above by offering a slightly different argument: that they must suppress the pro-Palestinian speech at issue to ameliorate subjective experiences of fear or insecurity among those Jewish workers or students who themselves perceive that speech to be antisemitic and thus threatening. The law firms’ letter, for instance, invokes the idea that its workforce has a right to be free from an environment that is “offensive, hostile, [or] intimidating” when such experiences are based on conduct that “targets their identity.” Similarly, the President of Harvard University recently condemned “from the river to the sea” in part on the ground that “to a great many people [it] impl[ies] the eradication of Jews from Israel and engender[s] both pain and existential fears within our Jewish community,” treating this condemnation as part of Harvard’s “commitment to protecting all members of our community from harassment and marginalization.” (Such statements, it is worth nothing, elide diversity among Jews, amplified by generational differences, regarding both substantive views about Israel/Palestine and the attribution of antisemitism to those who disagree.)
Regardless, employers cannot shield themselves from liability through such arguments. An employer’s obligation to prevent what’s known as “hostile work environment” harassment extends only to such environments that in fact are created on a discriminatory basis (here, antisemitically). Moreover, subjective experience, however genuine, is insufficient; liability attaches only when workers “objectively,” that is, “reasonably,” experience the environment as hostile or abusive.
To see the importance of these principles, another analogy may be helpful. Consider the possibility that many white people—out of some combination of commitment to white supremacy, defensiveness about the pervasiveness of racism in the U.S., and anti-Black stereotypes—might feel unsafe or threatened by a rally with many Black people chanting “Black Lives Matter” and “No Justice, No Peace.” It would be outrageous, and widely recognized as such, to suppress such rallies and discriminate against participants on the ground of maintaining an inclusive working and learning environment on the basis of such subjective feelings, however genuine. This example also suggests how my analysis applies to repression of chants of “intifada,” referencing Palestinian resistance or uprising, though space precludes elaboration here.
These points reflect not only the subjective/objective distinction in hostile work environment law but also the bedrock principle that an employer’s responsiveness to discriminatory demands itself constitutes unlawful discrimination, even if the employer pursues responsiveness in general or has other nondiscriminatory underlying motives (so-called “rational discrimination”). Guidance from the Equal Employment Opportunities Commission, for instance, offers as an illustrative hypothetical an employer who discharges a “driver who appeared to be Arab” because customers were fearful of riding with him due to their association of him with “allegations of terrorist activities against Americans in the Middle East.” This example illustrates the general point that if students or workers feel threatened by calls for Palestinian freedom, the sincerity and genuine pain of that experience does not justify anti-Palestinian repression under federal antidiscrimination laws if it is rooted in the baseless and arguably racist anti-Muslim associations analyzed above.
A compassionate and equitable employer can still respond to these realities with appropriate forms of reassurance, including forceful action against incidents of actual antisemitism that are occurring, without allowing pro-Israel overreaching to first stoke fear and then leverage the results into anti-Palestinian repression.
Threats and Retaliation
Two final Title VII implications follow from this analysis, building on the point that a reasonable jury could conclude that actions against the pro-Palestinian advocacy at issue constitute actionable discrimination. First, even before tangible actions like refusals to hire, terminations, or other discipline are carried out, the very public threat to do so in a fashion readily understood to rest on anti-Muslim stereotypes is likely independently actionable. An employer’s announced intention to traffic in or defer to such stereotypes may give rise to a hostile work environment for those at risk of subjection to them, including Palestinian employees and others who may be associated with them or racialized as Muslims or Arabs. This reasonable fear includes the risk that participation in pro-Palestinian advocacy will be treated more harshly in those most vulnerable to stereotyping as violent or hateful and whose explanations are most likely to be dismissed as insincere. This dynamic, of course, is on prominent display with the House singling out for censure its only Palestinian-American member, Rep. Tlaib.
Second, Title VII prohibits retaliation for opposing employer conduct that would itself violate the statute, including opposing discrimination against other people and members of other groups. That is true so long as the employee’s opposition is grounded in their good faith, reasonable belief that illegal discrimination is at issue, even if a court later finds no illegal discrimination occurred. Retaliation protections also extend to opposing threatened discrimination that has not yet been carried out. Thus, in this context, an employer violates the law by retaliating against workers protesting the employer’s threatened discriminatory repression of “from the river to the sea” and similar speech, even if the retaliation does not itself constitute discrimination against the protesters. (Harassment of Jewish workers who express solidarity with Palestinian freedom may also violate Title VII if premised on the stereotype that Jews ought to support Israel by virtue of being Jewish.) This analysis can be extended to those who express opposition to anti-Palestinian repression precisely by joining in declarations like “from the river to the sea” as a defiant demonstration of solidarity. Elsewhere, I’ve elaborated an analogous argument in connection with the wave of professional athletes and other workers who “took a knee” in solidarity with Colin Kaepernick after he was punished for protesting anti-Black racism.
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Employers should resist the loud calls for repressing pro-Palestinian advocacy, on pain of violating Title VII. Those that already have succumbed—or issued those calls themselves—should take remedial steps to dispel the hostile work environment they are likely creating and to clarify that their appropriate commitment to combatting antisemitism provides no pretext for suppressing affirmations of Palestinian freedom or otherwise acting based on anti-Muslim stereotypes. Of course, such employers remain free, if they are not bound by the First Amendment, to openly take political sides as pro-Israeli partisans who impose their views on their workforce, without seeking cover in purported commitments to workplace equity. Finally, law schools, far from caving to employers’ threatened boycott of our students if we do not heed their calls for anti-Palestinian repression, should instead exclude such employers from our career services to the extent that we have institutional policies against collaboration with discriminatory employers.
