June 13, 2024
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Fighting for a Definition Of Antisemitism Will Not Protect Students

In defense of the Congressional Antisemitism Awareness Act (AAA), Nathan J. Diamant of the Union of Orthodox Jewish Congregations of America argues, “An antisemitic virus is spreading across college campuses, but you can’t combat antisemitism if you can’t—or won’t—define it.” (“The Senate Must Act to Combat the New Antisemitism,” May 10, 2024)

However, the issue the Jewish community is facing nowadays on college campuses is not so much antisemitic thought—which the government has no business regulating—as overt manifestations of antisemitism in the form of speech and actions. As even your typical Ivy League college president would probably concede, at least in theory, actions targeting Jewish students would not be constitutionally protected; the thornier issue pertains to speech deemed by Jewish students as threatening, but that is in the form of code words that are arguably subject to interpretation, such as “From the river to the sea, Palestine will be free” or “globalize the Intifada.”

Mr. Diament suggests that passage of the AAA would help clarify that such speech is not constitutionally protected. But I don’t see how. The AAA would require the Department of Education, when determining whether there has been discrimination against Jewish college students, to “take into consideration” the definition of antisemitism set forth in the International Holocaust Remembrance Act (IHRA) “as part of the Department’s assessment of whether the practice was motivated by antisemitic intent.” However, the proposed statute specifically provides that “nothing in this Act shall be construed to diminish or infringe” upon any First Amendment rights. In addition, the underlying antisemitic “intent” of those who harass Jewish students is not necessarily all that relevant.

When it comes to speech that is offensive to Jewish students, the primary issue under civil rights laws is not whether the speech was motivated by antisemitism, but whether the speech is threatening or creates a severe and pervasive environment for Jewish students, and whether the college is enabling or tolerating this type of environment. In fact, it would be fair to say that many of the protesting students don’t even know the meaning of the slogans they are shouting. And the motivations of college administrators are largely irrelevant to the issue of whether they are doing their due diligence to allow for a safe environment for Jewish students.

And even to the extent that antisemitic bias is relevant for purposes of determining a violation of civil rights laws, anti-Israel agitators can easily skirt around the IHRA definition of antisemitism simply by using certain buzz words but not others. So it’s considered antisemitic under the IHRA definition to compare Israel’s policies to those of the Nazis? No problem; just accuse Israel of “genocide.” So it’s considered antisemitic under the IHRA definition to refer to the state of Israel as a “racist endeavor”? No problem; just accuse Israel of “apartheid.”

As an example of how defining antisemitism can be reduced to an exercise in semantics, the judicial board at Binghamton University recently, in response to an internal appeal of a boycott, divestment and sanctions (BDS) resolution approved by the student association, relied on the IHRA definition of antisemitism to strike a clause in the resolution referring to Israel as an “apartheid” state but left intact a clause accusing Israel of “imposing apartheid in all the territories it controls.” Not exactly a big victory for the Jewish students at Binghamton.

The proposed language in AAA largely mirrors, albeit in a more binding manner, Executive Order (EO) 13899 signed by then President Donald Trump in 2019. At the time it was issued, EO 13899 was applauded by Jewish Zionist organizations—including the Orthodox Union—with the anticipation that it would protect Jewish college students from being subject to antisemitism. Yet EO 13899 is still in effect and antisemitism at American colleges appears to be worse than ever. So why would one expect that passage of the AAA will be any more successful in protecting Jewish college students?

I question whether the way to battle leftist groupthink on college campuses is to impose our own thought code on the general public, and that’s essentially what the IHRA definition is. Defining antisemitism, like any other form of bigotry, is highly subjective; the safest way to define it is probably how Supreme Court Justice Potter Stewart famously defined pornography: “I know it when I see it.” Some of the examples of antisemitism cited by the IHRA are highly questionable. For example, given the large strain of anti-Zionism within the Hasidic and Jewish left-wing communities, who’s to say that anti-Zionism is necessarily antisemitic?

If a definition of antisemitism is officially enshrined into federal law, it’s inevitable that other groups will demand officially recognized definitions of bigotry against them. I can foresee passage of a long laundry list of defined bigotries, each with its own examples. Like a definition of anti-Asian racism that includes, as an example, blaming China for COVID-19. Or a definition of “transphobia” that includes the belief that there are only two genders—male and female. In fact, there is
already legislation in process in New Jersey that would adopt not only the IHRA definition of antisemitism for “diversity, equity and inclusion” purposes, but also the definition of “Islamophobia” that has been adopted by the United Nations. It’s quite conceivable that Islamophobia could include the belief that the Palestinians should not have their own state in “Palestine”—a definition that could obviously come into conflict with the IHRA’s defining antisemitism to include denial of the Jewish people’s right to “self-determination.”

While there are no definitive answers as to how to combat college antisemitism, it seems pretty clear that we need to pick our battles—and I don’t think that the incorporation of the IHRA definition into federal law is worth fighting for.

Legislators who sign their approval of the AAA might consider themselves as having fulfilled their obligation to do their part to combat campus antisemitism, without feeling the need to do anything of more substance. Those who subscribe to the canard that Jews control the government could see passage of the AAA as validation of their beliefs. In fact, the mere mention of pernicious stereotypes about Jews in the IHRA definition could, in an odd way, confer legitimacy on those stereotypes. And with the passage of the AAA that they have endorsed, leaders of Jewish communal organizations can satisfy themselves that they are doing something to cure the “virus” of college antisemitism.

But would passage of the act actually do anything to protect Jewish college students from antisemitism? I highly doubt it.


Zachary M. Berman is an attorney and lives in Riverdale, NY.

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