The Wrong Way to Fight Anti-Semitism on Campus

The House of Representatives passed the Antisemitism Awareness Act last week in a bipartisan vote of 320 to 91. “Antisemitism is on the rise,” it declares, and is “impacting Jewish students.”

Bigotry against Jews is vile and warrants the nation’s attention. As President Joe Biden said Tuesday at the Holocaust Memorial Museum, “This hatred continues to lie deep in the hearts of too many people in the world and requires our continued vigilance.” But the Antisemitism Awareness Act is the wrong way to fight those ills. If passed by the Senate and signed into law, it would codify a controversial definition of anti-Semitism (among its 11 specific examples of anti-Semitic rhetoric: “The existence of a State of Israel is a racist endeavor”). And it would direct the Department of Education to consider that definition when judging complaints against colleges under Title VI of the 1964 Civil Rights Act, which says that no person, on the grounds of race, color, or national origin, can be “excluded from participation” in a program, denied its benefits, or “be subjected to discrimination.”

Interpreting Title VI has always been difficult and contested, particularly when speech that is protected by the First Amendment is alleged to be discriminatory as well. The act should be rejected by the Senate. Its definition of anti-Semitism is too expansive to serve as a unifying standard in academia, and it doubles down on an approach to antidiscrimination that chills free speech while failing to reduce hate.

[Conor Friedersdorf: How October 7 changed America’s free-speech culture]

Title VI wasn’t originally intended to apply to Jewish students. Passed during the civil-rights movement to address resistance to basic equality for Black Americans, the law does not prohibit discrimination on the basis of religion, and Jews were not considered a race. Jewish students nonetheless confronted anti-Semitism on campus, and concerned observers began to argue that, when Jewish students were targeted as members of an ethnic group rather than as a religious group, Title VI should protect them.

Kenneth L. Marcus helped make that happen. In 2004, while heading the Department of Education’s Office of Civil Rights, he issued policy guidance to colleges clarifying that Jews would be subject to Title VI protections insofar as they were mistreated on the basis of ethnicity rather than religion. Shortly thereafter, in a law-review article fleshing out what would and wouldn’t violate the Title VI rights of Jewish students, he set forth standards that did not seem to threaten free speech, noting that things that students and teachers do or say on campus, “although arguably anti-Semitic, do not rise to the level of harassment.” These included “anti-Israel or anti-Zionist academic literature, Holocaust denial, anti-Zionist bias in programs of Middle East studies,” and “anti-Israel boycotts.” Student-on-student harassment “may be actionable,” he added, if it is “severe, pervasive, and objectively offensive,” and negatively affects the “ability to receive an education.”

Extending Title VI protections to Jews proved a positive and enduring civil-rights achievement. The Obama administration later endorsed it, as did President Donald Trump and President Biden. But over the years, general changes in how the Civil Rights Act is interpreted by bureaucrats have lowered the threshold for violations. “The Obama Administration pushed schools to address harassment before it ‘becomes severe or pervasive’ to prevent the creation of ‘a hostile environment,’” the Brookings Institution wrote in a 2020 analysis of Title IX, another section of the Civil Rights Act giving rise to jurisprudence that informed Title VI enforcement.

Meanwhile, people intent on protecting Jewish students evolved in their thinking about anti-Semitism. They perceived a rise in attacks on Jews that were disguised as attacks on Israel. In 2016, the International Holocaust Remembrance Alliance (IHRA) adopted a working definition of anti-Semitism that offered 11 illustrations of it. It contained consensus examples, such as “calling for, aiding, or justifying the killing or harming of Jews,” as well as more controversial examples that pertained to Israel, including:

• Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.

• Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.

• Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.

• Drawing comparisons of contemporary Israeli policy to that of the Nazis.

During the Trump administration, the Department of Education started using this new definition in Title VI complaints. That didn’t make it unlawful to say anything on campus defined as anti-Semitic. Rather, when studying whether a Jewish student had been mistreated because of their ethnicity, or for some reason not covered by Title VI, bureaucrats considered whether speech deemed relevant to the case met the definition of anti-Semitism.

Still, free-speech advocates had good reason to worry. Suddenly, college administrators intent on minimizing exposure to Title VI investigations had a new incentive to crack down on even protected speech that the state defined as anti-Semitic. The IHRA definition was further entrenched in 2019, when Trump issued an “executive order on combating anti-Semitism” that told the government to adopt it. Biden did not rescind the order.

If the Antisemitism Awareness Act passes, that approach, including the reliance on the IHRA definition of anti-Semitism, will not only continue but will also be codified in law rather than subject to revision by future appointees at the Department of Education.

Earlier this week, the Department of Education published a “Dear Colleague” letter suggesting that protected speech alone can give rise to a hostile campus environment that requires administrators to respond in some way, even if they cannot punish the speech in question. It states that “a university can, among other steps, communicate its opposition to stereotypical, derogatory opinions; provide counseling and support for students affected by harassment; or take steps to establish a welcoming and respectful school campus.” This seems to create an incentive for preemptive crackdowns on protected speech by administrators who want to avoid federal investigations. The guidance could lead to the hiring of still more administrators assigned to police speech, manage student concerns about it, and lead DEI-style initiatives aimed at anti-Semitism as distinct from anti-racism.  

That’s my prediction regardless of whether the Antisemitisim Awareness Act becomes law. When the House voted to pass it, proponents sought to alleviate concerns by noting that its definition of anti-Semitisim has been used by bureaucrats for years. Although true, that raises a tough question for the bill’s supporters: If the Department of Education has deployed that definition for six years, even as anti-Semitism exploded on campuses, why is putting that definition into law a promising way forward? It has clearly failed to prevent Jewish students from experiencing a hostile climate.

So why entrench it, given the free-speech concerns? The law professor David Bernstein, a defender of the act, believes it would help address a double standard. Currently, he observes, Title VI is used as “an excuse to try to censor speech that offends woke sensibilities,” whereas “antisemitic speech that might contribute to a hostile environment is treated with much more equanimity.” That double standard is “illegal discrimination against Jewish students,” he writes. “Things won’t get any better,” he thinks, “unless the left is forced to apply the standards it pushes in favorable contexts to contexts it doesn’t like.”

But this logic will only lead to escalation. The First Amendment expert Eugene Volokh offers a hypothetical example in a post explaining why he opposes the Antisemitism Awareness Act. Imagine that Kamala Harris is president, he writes, and enacts a statute that codifies examples of anti-Palestinian discrimination––such as denying Palestinians their right to self-determination, and comparing Palestinian attitudes toward Jews to those of the Nazis. Many people would be concerned that these examples “were likely to (and probably intended to) deter people from expressing their political views about the Israeli-Palestinian conflict,” Volokh points out.

The Antisemitism Awareness Act is similarly objectionable. And if it passes constitutional muster, an analogous law to define anti-Palestinian bigotry is not only presumably lawful––it is, I think, likely to be proposed and passed into law one day. Both sides in the American debate over Israel and Palestine will have an ongoing incentive to lobby for new antidiscrimination standards, both to satisfy their understandable desire for equal treatment and to chill the speech of their rivals.

“Antisemitism should be treated like other forms of bigotry,” Cathy Young argues in an essay for The Bulwark. “But the remedy for double standards is to move away from policies that police and penalize controversial or even offensive but non-harassing campus speech, not to extend those policies to more varieties of speech and more identities.”

I agree.

University administrators are constantly regulating speech that is protected by the First Amendment. In the name of antidiscrimination, deans at Ivy League universities have tried to police matters as trifling as edgy Halloween costumes and slang on law-school party flyers. I favor opposing discrimination. I favor protecting speech. Colleges are too inept at both projects to excel at either when vague, constantly reinterpreted regulations prompt continuous monitoring of speech.

What if, instead of defining and suppressing mere speech about Israel and Palestine that crosses some threshold of bigotry, Americans recognized that colleges in a pluralistic, multiethnic society include lots of students who hold all sorts of discriminatory beliefs? And that part of being an educated person is learning how to respond to people with wrongheaded viewpoints, and even to persuade those people to abandon them?

[Conor Friedersdorf: Free speech is not just for conservatives]

After all, the problem is that people hold bigoted views, not that they say them aloud. Whatever happens with Title VI, and the Antisemitism Awareness Act’s attempts to entrench a particular approach to enforcing it, lots of people aligned with Palestine will continue to hold positions that many Jews understandably interpret as hostile. Lots of people aligned with Israel will continue to hold positions that many Palestinians understandably interpret as hostile. How could it be otherwise? If hostile-feeling positions become unsayable on campus even as they are widespread in society, academia will become irrelevant in a vital debate, denying all students the benefits of an uncensored education.

That isn’t to denigrate all Title VI protections. Institutions of higher education that receive federal funds should treat all students, including Jews, equally, regardless of race, color, or national origin––and, for that matter, regardless of characteristics that Title VI does not address, such as religion, height, weight, attractiveness, partisan affiliation, dominant hand, and more. No student should be harassed each day, or blocked from walking across a quad, or shouted down when trying to participate in class discussions, for any reason.

But when exposure to highly offensive speech or ideas is conflated with "severe” or “pervasive” harassment that prevents equal access to education, that false equivalence threatens the university itself. It destroys an institution’s ability to address the matters that most divide us.