Law Professor Ramsi Woodcock was suspended from teaching at the University of Kentucky (UK) and barred from campus for posting a “Petition for Military Action Against Israel” on a website he manages. Eli Capilouto, president of UK, issued a statement explaining the action, which noted in part:
That petition — which can be interpreted as antisemitic in accordance with state and federal guidance — appears to be authored by a university employee who is circulating it broadly online.
The Foundation for Individual Rights and Expression (FIRE) has taken up Woodcock’s cause in a lawsuit, and they will likely prevail against UK. Capilouto knows this, and the university’s statement is very carefully worded by attorneys who are attempting to thread a precarious needle. They need to keep the Trump Administration at bay and mollify the Kentucky State Senate, which is demanding Woodcock’s permanent removal. This is a cynical, but perhaps clever, calculation by UK. The lawsuit will be settled or decided with relatively minimal damages paid to Professor Woodcock. The failure to address his petition might cost UK hundreds of millions in federal grants and funds, if the Trump Administration finds that UK tolerated antisemitism, as it has with so many other institutions, recently.
It’s easy calculus if you’re a university president, as long as you don’t mind trampling free speech. How the university’s faculty will respond is yet another question, but they may rightfully sense they are expendable in light of the Trump Administration’s attacks on colleges. Capiluoto knows that the courts will reinstate Woodcock, but that gives the university cover. It can’t bow to the demands of the Trump Administration and the Kentucky State Senate if a court ruling protects Woodcock. Woodcock will likely win his costs as well, under a Title VI suit or First Amendment claim, so while his career is upended and his reputation is marred, he won’t likely suffer financially in the long run. That’s a cost he needed to anticipate for publicly advocating for the military destruction of Israel, as a public university employee.
Capiluoto has initiated an expedited internal investigation of Woodcock, though I am sure the UK attorneys are anticipating a temporary restraining order (TRO) from the court long before their investigation concludes. Woodcock may also face legal expenses related to this investigation, although I expect various interest groups to offer their services. If the investigation concludes before a court intervenes, it should clear Woodcock under UK’s own policies, referenced in the statement. Refer back to that quote, above. Capiluoto asserts the petition is antisemitic and condemns it. Of course, it is antisemitic. Being antisemitic is allowed. Even protected by the First Amendment, at a public university. Acting in ways that are antisemitic that cause a discriminatory effect on members of the campus community – that’s prohibited by Title VI. But Woodcock’s petition did not do that. It’s not even directed at UK in any way, though Woodcock made the ill-advised choice to sign it using his UK title and position. Even if it is directed at UK, Title VI requires UK to remedy the effects of that petition on its community, but it still can’t punish the law professor for engaging in protected speech.
UK statement’s phrasing is clever and careful. The petition can be interpreted as antisemitic under current state and federal guidance, as if to underscore that such guidance does not have the force and effect of law. The Trump Administration’s blunt conflation of antisemitism and antisemitic discrimination isn’t legally tenable, but that doesn’t mean that UK isn’t a political actor, or that it can dismiss guidance simply because the Trump Administration misstates or misinterprets the law.
The Trump Administration can conflate antisemitism and discrimination if it wants to, but universities cannot. The court will clarify that distinction quickly, giving FIRE an important victory. Why is this speech protected? Because it won’t lead to the military destruction of Israel, and it can’t catalyze hate acts against Jews or Zionists at UK, because it does not call for that. It’s legal to hate Jews, hate Zionists, and want Israel destroyed. It’s illegal to bring about harm to Jews, Zionists, and/or Israelis by taking acts in the furtherance of those aims. Even if Capilouto and UK’s lawyers appreciate this important distinction, they are in an impossible position. Some presidents now face the short-term choice of sacrificing some members of the community to preserve the long-term financial health of the institution. That would be a tough choice for me, so it’s a good thing I am not a president. I find Woodcock’s views odious, but I would not take action against him. A good president knows when to be principled and when to be pragmatic. Those qualities can’t always co-exist.
As the Trump Administration has been settling complaints against colleges under Title VI, it has been forcing adoption of a definition of antisemitism published and promulgated by the International Holocaust Remembrance Alliance (IHRA) that even the faculty member who authored the definition says is a perversion of his intent in writing it. It too easily leads to the conflation of antisemitism with discrimination, to make it seem that antisemitism is the prohibited act, rather than discrimination. That’s why ATIXA recently decided to publish a model Title VI policy and procedures for colleges and universities. This conflation is becoming commonplace and is resulting in exactly the kinds of premature enforcement actions we see at places like UK. Woodcock should never have been suspended, and everyone knows it. You don’t need an investigation to determine that his actions are protected speech, though an investigation to assess his effects on the community may be warranted if a complaint has been filed.
ATIXA published its model expressly to underscore the difference between antisemitism (or any protected hate speech) and acts of discrimination. We published it in collaboration with the National Jewish Advocacy Center (NJAC). The model embraces the IHRA definition of antisemitism but clarifies that it’s not an enforcement standard, but a statement of the kind of climate of acceptance universities expect of their communities. Only the discrimination definition is enforceable, as it should be and must be under federal law. Antisemitism can, in extreme cases, amount to discrimination, but in most cases, it will not. The same is true of anti-Muslim and any similar sentiments expressed on the basis of ethnicity, shared ancestry, or national origin. The IHRA definition isn’t going to help any college thread this delicate needle, but our model will do exactly that.
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