The University of California Board of Regents is set to vote on Wednesday on whether to approve a report on intolerance that critics say threatens free speech by conflating anti-Semitism and anti-Zionism.

While many questions remain over how the report would be implemented, it has generated strong criticism from a broad spectrum of voices who say it could have a deeply chilling effect on campus speech and activism.

The report’s proposed set of “Principles Against Intolerance” is preceded by a “contextual statement” that asserts that “Anti-Semitism, anti-Zionism and other forms of discrimination have no place at the University of California.”

“Most members of the university community agree with this conclusion and would agree further that the university should strive to create an equal learning environment for all students,” the statement claims.

The list of principles that follows, however, does not mention Israel or anti-Zionism. Instead, they reiterate the general mission and values of the university that condemn intolerance and discrimination and uphold free speech, civility and respect.

One principle suggests enhanced sanctions in cases where already unlawful acts – such as vandalism or assault – are motivated by discrimination.

“Dangerously astray”

A Los Angeles Times staff editorial concludes that the report goes “dangerously astray” as it “conflates anti-Semitism with anti-Zionism and says both are forms of discrimination.”

“It’s difficult to read that as anything other than a warning to those students or faculty members who have fundamental disagreements with the state of Israel,” the editorial adds. “It apparently rules out of bounds an assertion by, say, a Palestinian professor that Israel’s creation was unfair and unjustifiable, or by a Jewish student that Israel should be replaced by a nonsectarian state.”

Such ideas, the newspaper says, “are fully entitled to protection at a public university under the First Amendment.”

Legal advocacy group Palestine Legal has also said that the conflation of anti-Semitism with anti-Zionism “serves to facilitate university actions to malign and punish students, faculty and other community members who criticize Israeli policies.”

Tammi Rossman-Benjamin, a lecturer at UC Santa Cruz and a co-founder of the pro-Israel group Amcha Initiative, applauded the report, calling it an “excellent compromise.”

Amcha and Rossman-Benjamin have been behind numerous efforts to smear, censor and harass supporters of Palestinian rights on campus.

They have long lobbied for the UC system to adopt the US State Department’s definition of anti-Semitism, that includes criticism of Israel.

Unclear aim

Dianne Klein, a spokesperson for the University of California president’s office, told The Electronic Intifada that the report was not meant to serve as a policy to be enforced, but as a statement asserting the “high standards” to which the university holds itself.

“It wasn’t intended to fill any gap in policy. Many members of the university community felt like they needed another statement against intolerance,” Klein said.

Liz Jackson, an attorney with Palestine Legal, told The Electronic Intifada that “the ambiguous reference to anti-Zionism in the context section as a form of discrimination is simply not enforceable.”

Jackson believes that if the university did try to criminalize anti-Zionist activities or speech it would certainly face legal challenges.

“Perhaps omitting this reference in the proposed principles is the university’s way of trying to avoid a lawsuit,” Jackson said. “Or perhaps this is the university’s way of acknowledging, cryptically, that it cannot lawfully restrict anti-Zionist speech.”

But Jackson said violation of free speech may nevertheless be a consequence of the report: “With such a chilling call to university leaders to eliminate anti-Zionism from campus, there is likely going to be many more such constitutional violations and they are inviting litigation.”

But whether the report is intended to be a tool of enforcement and censorship is unclear even among top officials at UC.

Julia Friedlander, the deputy general counsel in the president’s office, told the UC student workers’ union that the university’s lawyers have “conflicting opinions” as to whether the contextual statement was enforceable.

“It’s unacceptable that the university has not made it clear whether the contextual statement is intended to be enforceable,” Palestine Legal’s Liz Jackson said.

“If the university believes it is enforceable policy and intends to restrict anti-Zionist speech, then it’s an unconstitutional policy. If the university believes it is not enforceable, then it needs to say so,” Jackson added.

A year in progress

For the past year, there has been mounting pressure on the UC Regents, the only body with authority to set policy on the issue, to endorse the definition of anti-Semitism supported by pro-Israel groups and adopted by the US State Department.

It defines as anti-Semitism statements that “delegitimize Israel” by “denying the Jewish people their right to self-determination and denying Israel the right to exist.”

The push for the UC to adopt the policy comes in spite of the fact that the Anti-Defamation League reported that 2015 saw the lowest number of anti-Semitic incidents on college campuses since the group began tracking them in 1999.

In addition, a statewide campus climate survey in 2014 found Jewish students report high levels of comfort on campus.

Nonetheless, a handful of incidents on some of the ten UC campuses fueled pressure by pro-Israel groups to clamp down on the growing Palestinian rights movement.

In March 2015, Amcha and 23 other groups sent a letter to the UC Regents and President Janet Napolitano urging the university system to formally adopt the State Department’s definition, claiming that there was “a well-documented relationship between BDS [boycott, divestment and sanctions] and acts of anti-Semitism, particularly on college campuses.”

Notably, the lead author of that definition, Kenneth Stern, has opposed the adoption of the definition by universities.

In July 2015, the California state legislature passed a resolution urging the University of California to condemn all forms of anti-Semitism.

The resolution cites part of the State Department definition though notably omits the references to Israel.

In a radio interview last May, UC President Janet Napolitano publicly declared her support for the State Department definition and insisted that UC Regents would vote on it in July.

But facing growing criticism, Napolitano removed the issue from the UC Regents’ agenda, postponing a discussion until September.

In September, the regents proposed their first “statement of principles against intolerance.”

They tabled it again, however, after it was harshly rebuked for being weak on anti-Semitism by Rossman-Benjamin among others.

Regent Richard Blum threatened to have his wife, US Senator Dianne Feinstein, publicly criticize the university if it did not adopt a more stringent set of standards and penalties.

In response to the heated backlash, Chair Monica Lozano formed a working group to explore the issue.

The working group included Student Regent Avi Oved, an outspoken advocate for Israeli militarism whose election campaign was surreptitiously funded by the anti-Palestinian philanthropist Adam Milstein.

According to background information included in the report, the working group consulted several supposed experts in the field, including Kenneth Marcus, the president of the Louis D. Brandeis Center for Human Rights Under the Law, and Rabbi Marvin Hier, the head of the Simon Wiesenthal Center.

Marcus and Hier and their respective organizations are leading opponents of the movement for Palestinian rights.

Marcus, notably, led a failed effort to use formal civil rights complaints of anti-Semitism against several universities to force administrators to crack down on Palestinian solidarity activism.

Marcus told The Jewish Journal that he was happy with what the UC working group produced this month but stressed that every part of the report, including the “contextual statement,” needed to be adopted for it to have meaning.