Against the backdrop of university protests against the war in Gaza, President Biden last week rightly denounced incidents in which “Jewish students [were] blocked, harassed, attacked while walking to class.” These actions are atrocious even if they involve a minority of protesters.
Meanwhile, the U.S. Department of Education released updated guidance for educational institutions on compliance with Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin in programs that receive federal financial assistance, a statute the department interprets as protecting Jews, Muslims and Sikhs. The most recent guidance includes a description of situations in which Jewish students are attacked; for example, a complaint that a bedroom door was defaced with swastikas.
Biden's comments and the Department of Education's decision to issue updated guidance are appropriate responses to Jewish students' concerns. A bill overwhelmingly passed by the House that would force the Department of Education to use a broad definition of anti-Semitism that could chill political discourse is inappropriate (in fact, arguably unconstitutional).
Although it received significant support from Democrats, the Anti-Semitism Awareness Act was brought to the floor by Speaker Mike Johnson (R-La.) and should be seen as part of Republicans' election-year efforts to introduce Biden and the Democratic Party as soft on anti-Semitism.
The problem with the Antisemitism Awareness Act is that it directs the Department of Education to “take into consideration” the operational definition of antisemitism promulgated by the International Holocaust Remembrance Alliance when determining whether there has been a violation of Title VI. That definition offers examples of what everyone would consider anti-Semitism. But he also gives as examples of anti-Semitism criticism of Israel that, although unfair, is protected speech.
For example, the IHRA definition provides these examples of anti-Semitism: “denying the Jewish people their right to self-determination, for example by claiming that the existence of a State of Israel is a racist endeavor” and “applying double standards by demanding [Israel] “behavior that is not expected or required of any other democratic nation.”
Israel is a member state of the United Nations and is not going away, nor should it. But some people, including university students, believe Israel should be replaced by a secular state not tied to any religion or ethnicity. Expressing or debating this idea is not the same as spewing hatred against Jews.
Even more susceptible to abuse is the notion that it is anti-Semitic to subject Israel to double standards “by requiring of it behavior that is not expected or required of any other democratic nation.” Does this mean that a student or teacher is guilty of anti-Semitism for criticizing Israel but not other democratic nations?
However, Rep. Jerrold Nadler (D-N.Y.), who describes himself as “a deeply committed Zionist who firmly believes in Israel's right to exist as a homeland for the Jewish people,” opposed the legislation. Nadler, according to the American Civil Liberties Union, warned that “if this legislation were to become law, colleges and universities that want to avoid Title VI investigations, or the potential loss of federal funds, could end up suppressing protected speech.” that criticizes Israel or supports the Palestinians.” . Additionally, it could lead to students and teachers self-censoring their political speech.”
The Department of Education has said it considers the IHRA definition in some of its investigations to determine whether there is discriminatory intent. But he has also said that an anti-Semitic act “does not violate Title VI simply because… . . This is an example of anti-Semitism contemplated by the IHRA.” In enforcing Title VI, the department attempts to determine whether there is widespread conduct that creates a hostile learning environment.
Some might argue that adopting the House bill wouldn't matter because the Department of Education already takes into account the IHRA definition. But both supporters and opponents of the Anti-Semitism Awareness Act believe it would make a difference. It would be, but in a negative way. And enshrining the definition in federal law would make it more difficult for a future administration to decide that the definition is not useful.
Protecting all students from harassment and bullying based on their identity is a vital goal. But it can and should be achieved without infringing on freedom of expression.
