On December 5, 2016, CCR, Palestine Legal, the National Lawyers Guild, the U.S. Campaign for Palestinian Rights, Jewish Voice for Peace, the American-Arab Anti-Discrimination Committee, the Bill of Rights Defense Committee/Defending Dissent Foundation, the Friends Committee on National Legislation, and American Muslims for Palestine sent a memorandum to U.S. Congress members opposing the Anti-Semitism Awareness Act. The bill, which passed the Senate on December 1 by unanimous consent and without debate, would have required the Department of Education to employ a discredited, overbroad, and vague definition of antisemitism that conflates it with criticism of Israeli government policy by including any speech deemed to “demonize,” apply “double standards” to, or “delegitimize” Israel. While purporting to address antisemitic incidents on campuses, the bill instead targeted Palestine advocacy and could have been used to justify investigations of campus activists, while providing no new protections for Jewish students. The so-called "State Department definition" had been previously considered and rejected by the University of California, and the definition's own author opposed the bill. The bill died in the U.S. House on December 12, 2016, but spurred similar bills to later appear in states including Virginia and South Carolina.

The bill was reintroduced in the U.S. House and Senate on May 23, 2018. On August 8, 2018, CCR joined a coalition of civil and human rights organizations in sending a letter to members of the Judiciary Committee of the U.S. House of Representatives opposing the revived bill.

These letters are part of a continuing effort to challenge bills that threaten core First Amendment-protected activity in support of Palestinian rights, following from the efforts of CCR, Palestine Legal, and other allies to challenge legislation in New York, California, Ohio, Georgia, New Jersey, Pennsylvania, Massachusetts, South Carolina, Maryland, Texas, Virginia, Illinois, Florida, and the U.S. Congress. These bills are part of a growing trend of introducing legislation intended to silence Palestinian rights advocacy in numerous states and the U.S. Congress. For more information about other efforts to suppress First Amendment-protected activities in support of Palestinian rights, including other legislative efforts to restrict Boycott, Divestment, and Sanctions (BDS) campaign efforts, see CCR and Palestine Legal’s report, The Palestine Exception to Free Speech: A Movement Under Attack in the U.S.

The text of the 2018 letter is below, and below that is the 2016 memorandum.

August 8, 2018                           

Re: First Amendment concerns with Anti-Semitism Awareness Act

Dear Rep. Goodlatte and Rep. Nadler:

As civil and human rights organizations, we support your efforts to confront racism and bigotry on campuses across the U.S. We write to raise concerns with the Anti-Semitism Awareness Act of 2018 (the Act), which directs the U.S. Department of Education (DOE) to consider a widely discredited re-definition of anti-Semitism[1] in assessing whether alleged violations of Title VI of the Civil Rights Act are “motivated by anti-Semitic intent.” This vague and overbroad re-definition conflates political criticism of Israel with antisemitism, encouraging infringements on constitutionally protected speech. We urge you to reject this unconstitutional bill, as you did in 2016.

The re-definition of antisemitism endorsed by the Act is especially detrimental to universities, whose missions necessitate respect for freedom of speech, critical inquiry, and unfettered debate. Kenneth Stern, the re-definition’s original drafter, has repudiated its application on college campuses in several published opinion pieces, as well as in Congressional testimony during a 2017 Judiciary Committee hearing on antisemitism on college campuses.[2] A May 2018 Los Angeles Times editorial also cautioned against the Act, noting, “freedom of speech on college campuses is under enough pressure without the federal government adding to the problem by threatening to withdraw funding to punish people for expressing their political opinions. That would be a real possibility if Congress enacted and President Trump signed a bill called the Anti-Semitism Awareness Act of 2018.”[3]

It is incumbent on lawmakers at all levels of government to take action to ensure safety and security for all people, especially those vulnerable populations targeted by bias-motivated attacks. The Act does not achieve this goal. Instead of safeguarding against expressions of hatred towards Jewish people, this bill aims to censor First Amendment-protected advocacy for Palestinian rights. It invites the DOE and universities to violate free speech principles by discriminating against certain viewpoints and chilling one side of an important political debate. In our experience defending civil rights and civil liberties on college campuses, we have seen first-hand how the re-definition endorsed by the Act has been used as a tool by the same groups supporting this legislation, including the Brandeis Center, to silence students, faculty, and staff who speak critically of Israeli violations of Palestinian rights.[4]

I. The re-definition of antisemitism endorsed by the Act equates criticism of the Israeli government with anti-Semitism

The Act purports to address rising antisemitism on college campuses, but a plain reading reveals that its real purpose is to silence campus advocacy for Palestinian rights and to censor criticism of Israeli government policies.

The Act would direct the DOE to consider a re-definition of antisemitism when determining whether alleged violations of Title VI of the Civil Rights Act are motivated by antisemitism. Much of that re-definition is uncontroversial and aligns with a traditional understanding of the term.[5] But the re-definition, which was briefly used – and subsequently discarded – by a European Union agency,[6] radically departs from that understanding with its listing of examples of “Anti-Semitism Related to Israel,” known as the “three D’s”: “demonizing Israel,” “applying a double standard to Israel” and “delegitimizing Israel.”[7] This codifies a false conflation of antisemitism with political speech critical of Israeli policies.

The “three D’s” are so broad and vague that they could encompass any and all criticism of Israel. What is a “double standard” with regards to criticism of Israel and how and by whom will it be judged? How many additional countries would students and professors be required to criticize when they criticize Israel, and what degree or depth of criticism would they be required to make in order to avoid applying a “double standard” to Israel? How would the DOE or a university define “delegitimizing” or “demonizing” Israel? Would a mock-checkpoint on a campus quad, aimed at raising awareness about Israeli military checkpoints that restrict Palestinian freedom of movement, be considered demonizing? Would a lecture on Israel’s violations of international law be considered delegitimization? Would a legal panel on the constitutional right to engage in boycotts for Palestinian rights be considered a double standard?

Enforcement of these requirements would necessitate viewpoint discrimination and could compel speech (for example, by requiring someone to criticize policies of other nations when critiquing the Israeli government) in violation of the First Amendment. Moreover, requiring the DOE, and universities by extension, to enter such a morass of viewpoint-based distinctions would chill and invite punishment of constitutionally protected speech.

II. Adopting a re-definition of antisemitism that conflates antisemitism with criticism of Israel would violate the First Amendment

Adoption and enforcement of the re-definition of antisemitism to assess whether political speech activities constitute discrimination on campuses or elsewhere in the U.S. would violate the First Amendment, and requiring DOE to consider the re-definition is tantamount to inviting DOE to violate the First Amendment.[8] It is especially inappropriate for Congress to impose on the DOE a definition of antisemitism that encompasses criticism of Israel because of the essential role that academic freedom and unfettered debate play in U.S. universities. The U.S. Supreme Court has recognized the importance of this role, stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”[9]

Requiring the DOE to consider this re-definition in its investigation of Title VI complaints essentially puts DOE officials and university administrators in the position of violating free speech rights. Indeed, the DOE’s Office for Civil Rights (OCR) has already affirmed in four separate cases―after conducting lengthy investigations of alleged harassment of Jewish students based on student and faculty advocacy for or academic engagement on Palestinian rights issues―that expression of political viewpoints does not, standing alone, give rise to actionable harassment under Title VI simply because some may find it offensive.[10]

To the contrary, OCR, in addressing the importance of diverse viewpoints and expression on college and university campuses,[11] noted that the activities described in the harassment complaints:

constituted expression on matters of public concern directed to the University community. In the University environment, exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience.[12] 

If enacted, DOE will be required to investigate the content of political speech by members of the campus community who advocate for Palestinian rights to determine whether the speaker is “demonizing,” “delegitimizing” or applying “double standards” to Israel. The resulting political litmus test will violate the speakers’ First Amendment rights.

Administrators, who have a legal duty to mitigate racially-hostile environments, would also be pressured to respond to speech and advocacy critical of Israel that Israel-aligned groups already routinely claim meets the criteria laid out in the re-definition. Under the mistaken illusion that it is appropriate to penalize such speech and advocacy, administrators may end up violating First Amendment rights. This could expose universities and well-intentioned administrators to liability.[13]

Further, adoption of the re-definition would almost certainly have a chilling effect on constitutionally-protected speech and academic inquiry. Students, professors, and researchers will inevitably act in ways to avoid review of their activities and avoid the specter of being accused of antisemitism for their political speech activities.

The University of California (UC) and other universities have already been pressured to adopt, and ultimately rejected, the antisemitism definition endorsed by the Act due to free speech concerns.[14] Israel-aligned organizations pushed for its adoption by the UC system in March 2015, causing outcry from free speech advocates[15] across the political spectrum, from media,[16] students,[17] graduate student instructors,[18] and Jewish[19] and other civil rights organizations.[20] Jewish commentators,[21] including – as mentioned above – the definition’s original drafter, Kenneth Stern, repudiated its use on a college campus.[22] We urge you to similarly reject this measure, as you did in 2016.

III. Conclusion

We appreciate the importance of addressing allegations of antisemitism on campus and elsewhere. The Act’s reliance on an overbroad and much-criticized re-definition of antisemitism unfortunately fails to give universities the proper tools to fight antisemitism and other forms of discrimination. Instead, it will encourage the DOE and universities to infringe on free speech and academic freedom on campus, in violation of the First Amendment.

We urge you to drop consideration of this bill and, instead, engage in meaningful efforts to address antisemitic, racist, anti-Muslim, anti-immigrant, and anti-LGBT incidents and other forms of discrimination that have been fueled by increasing tolerance for bigotry. This bill will ultimately undermine civil liberties on campuses, while failing to address or hold accountable the sources of the alarming incidents of bigotry that are occuring on campuses and elsewhere.

Sincerely,

US Campaign for Palestinian Rights

cc: House Judiciary Committee

December 5, 2016

Hon. Bob Goodlatte
2309 Rayburn Office Building
Washington, DC 20515

Hon. John Conyers, Jr.
2426 Rayburn Office Building
Washington, DC 20515

Re:  First Amendment concerns with Anti-Semitism Awareness Act

Dear Rep. Goodlatte and Rep. Conyers:

As civil and human rights organizations committed to racial justice, we support your efforts to confront racism and bigotry on campuses across the U.S. However, we write to raise concerns with the Anti-Semitism Awareness Act (the Act), which directs the U.S. Department of Education (DOE) to consider a widely discredited re-definition of anti-Semitism[1] in assessing whether alleged violations of Title VI of the Civil Rights Act are “motivated by anti-Semitic intent.” This vague and overbroad re-definition conflates political criticism of Israel with anti-Semitism, infringing on constitutionally protected speech. The re-definition is especially detrimental to universities, where freedom of speech, critical inquiry, and unfettered debate are integral. The re-definition’s application to college campuses has even been repudiated by its original drafter, Kenneth Stern.[2] 

Incidents of racism, xenophobia, Islamophobia, anti-Semitism, anti-Arab sentiment, and other forms of discrimination have spiked in recent weeks,[3] and it is incumbent on lawmakers at all levels of government to take action to ensure safety and security for all people, especially those vulnerable populations targeted by such attacks. The Act does not achieve this goal. Instead of combatting the sources of recent spikes in anti-Semitism in a meaningful way, this bill aims to censor First Amendment-protected advocacy for Palestinian rights. It invites the DOE and universities to violate free speech principles by discriminating against certain viewpoints and chilling one side of an important political debate. For reasons set forth below, we urge you to drop consideration of this bill.

I. Lawmakers must take meaningful action to counter racism, xenophobia, Islamophobia, anti-Semitism, and other forms of discrimination

Incidents of harassment and intimidation against black people, immigrants, Muslims, Jewish people, LGBT people, and women in the U.S. have skyrocketed since the election. The Southern Poverty Law Center (SPLC) recorded over 900 such incidents in the ten days following the election. Some examples include:

• Immigrant students have been taunted and bullied by classmates chanting “build the wall!”
• Eighth graders on a Colorado school bus told a Latino student, “Not only should Trump build a wall, but it should be electorcuted [sic] and Mexicans should have to wear shock collars.”
• In Las Vegas, a white man punched two black men and attempted to assault a black woman, after which he shouted “Donald Trump!” and “White Power!”
• In Nashville, a white man harassed a woman in a hijab, yelling “[b]e prepared to go back to your country with ISIS…. Donald Trump will kick all of your ass back where you came from.”
• In Vermont, members of a synagogue found swastikas drawn on the temple’s front door.[4]

Since many incidents go unreported, the SPLC’s report likely represents just the tip of the iceberg.

In this context, it is crucial for lawmakers at all levels of government to take meaningful action to address the concerns of members of targeted communities. Lawmakers can, for example, take steps to ensure the DOE has the resources it needs to investigate such incidents on university campuses.

Instead of addressing the real problems of rising anti-Semitism and other forms of racism and discrimination, however, proponents of the Act are exploiting the moment to pass legislation aimed at stifling and suppressing the First Amendment right to dissent and to criticize Israeli government policies on univeristy campuses.[5] Instead of investigating the types of abuses documented in the SPLC report, the DOE will be directed to investigate the content of film screenings, academic panels, and lectures that are critical of Israeli government policies.

It is not the DOE’s role to be political thought police. The DOE’s duty is to investigate incidents of harassment and discrimination on campus. Empowering the DOE to fulfill that duty is more important than ever.

II. The re-definition of anti-Semitism endorsed by the Act is not appropriate for the university setting and risks violating the First Amendment

The Act purports to address rising anti-Semitism on college campuses, but a close reading reveals that its true purpose is to silence campus advocacy for Palestinian rights and censor any criticism of Israeli government policies. The Act would direct the DOE to consider the State Department’s re-definition of anti-Semitism when determining whether alleged violations of Title VI of the Civil Rights Act are motivated by anti-Semitism. Much of that re-definition is uncontroversial and aligns with a traditional understanding of the term.[6] But the re-definition, which was originally drafted – and subsequently discarded – by a European Union agency,[7] radically departs from that understanding with its listing of examples of “Anti-Semitism Related to Israel,” known as the “three D’s”: “demonizing Israel,” “applying a double standard to Israel,” and “delegitimizing Israel.”[8] This codifies the false conflation of anti-Semitism with political speech critical of Israeli policies. This approach is inappropriate, especially for universities that value and are obligated to protect academic freedom and First Amendment-protected speech.

a. Applying the re-definition of anti-Semitism in the U.S. violates the First Amendment

The State Department’s anti-Semitism re-definition is not binding law in the United States and is used for the limited purpose of “monitoring and combatting acts of anti-Semitism and anti-Semitic incitement that occur in foreign countries.”[9] It does not apply domestically, and is not used by any other U.S. government agency. Adoption of the re-definition on campuses or elsewhere in the U.S. is a violation of the First Amendment, and requiring DOE to consider the re-definition is tantamount to inviting DOE to violate the First Amendment.

Any consideration of the re-definition should alert lawmakers to the constitutional quandary it poses, and makes clear why such a definition cannot be used domestically. By requiring DOE to consider, for example, whether someone who demands Israel’s compliance with international law asks the same “of any other democratic nation,” the Act unconstitutionally discriminates based on viewpoint and compels speech in violation of the First Amendment (despite Sec. 5 of the Act which claims that it shall not be construed to infringe on First Amendment protected rights). Moreover, an Act requiring the DOE to enter such a morass of viewpoint-based distinctions would chill and invite punishment of constitutionally protected speech. 

In addition, the part of the re-definition that identifies “Anti-Semitism as it relates to Israel” is so broad and vague that it would encompass any and all criticism of Israel. What is a “double standard” with regards to criticism of Israel and how and by whom will it be judged? How many additional countries are students and professors required to criticize when they criticize Israel, and what degree or depth of criticism are they required to make in order to avoid applying a “double standard” to Israel? How would the university define “delegitimizing” or “demonizing” Israel?

Requiring the DOE to consider this re-definition in its investigation of Title VI complaints essentially puts DOE officials and university administrators in the position of violating free speech rights. Indeed, the DOE’s Office for Civil Rights (OCR) has already affirmed in four separate cases―after conducting lengthy investigations of alleged harassment of Jewish students based on student and faculty advocacy for or academic engagement on Palestinian rights issues―that expression of political viewpoints does not, standing alone, give rise to actionable harassment under Title VI simply because some may find it offensive.[10]

To the contrary, OCR, in addressing the importance of diverse viewpoints and expression on college and university campuses,[11] noted that the activities described in the harassment complaints:

constituted expression on matters of public concern directed to the University community. In the University environment, exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience.[12] 

If DOE is required to investigate the content of political speech by members of the campus community who advocate for Palestinian rights to determine whether it is “demonizing,” “delegitimizing,” or applying “double standards” to Israel, as the State Department’s re-definition of anti-Semitism would require, it will essentially be applying a political litmus test to speech, and thus violating the First Amendment.

Administrators, who have a duty to mitigate racially-hostile environments, would also be pressured to respond to speech and advocacy critical of Israel that Israel advocacy groups already regularly claim meets the criteria laid out in the re-definition. Under the mistaken illusion that it is appropriate to penalize such speech and advocacy, administrators may end up violating First Amendment rights. This could expose universities and well-intentioned administrators to liability.[13]

Further, adoption of the re-definition would almost certainly have a chilling effect on constitutionally-protected speech and academic inquiry. Students, professors, and researchers will inevitably act in ways to avoid review of their activities and avoid the specter of being accused of or labeled with anti-Semitism for their political speech activities.

b. The re-definition of anti-Semitism is destructive to universities that value unfettered speech

The State Department’s re-definition brands critics of Israeli policies and advocates for Palestinian human rights as anti-Semitic by blurring the important distinction between criticism of Israel as a nation-state and anti-Semitism. It does so by denying the legitimacy of widely shared criticism of Israel’s policies and practices on which such advocacy is based and claiming that such criticism is instead motivated by hatred of Jewish people.

In addition to inviting unconstitutional actions, it is especially inappropriate for Congress to impose on the DOE a definition of anti-Semitism that encompasses criticism of Israel because of the essential role that academic freedom and unfettered debate play in our nation’s universities. The U.S. Supreme Court has recognized the importance of this role, stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”[14]

The State Department re-definition would silence legitimate opinions and perspectives, and would impose standards on universities that undermine their commitments to academic freedom and inquiry. Would a mock-checkpoint on a campus quad, aimed at raising awareness about Israeli checkpoints, be considered demonizing? Would a lecture on Israel’s violations of international law be considered delegitimization? Would a legal panel on the constitutional right to engage in boycotts for Palestinian rights be considered a double standard? This is the type of inquiry the DOE will be required to enter into if the Act becomes law.

The University of California (UC) and other universities have already been pressured to adopt, and ultimately rejected, the anti-Semitism definition endorsed by the Act due to free speech concerns.[15] Israel advocacy organizations pushed for its adoption in March 2015, causing outcry from free speech advocates[16] across the political spectrum, from media,[17] students,[18] graduate student instructors,[19] and Jewish[20] and other civil rights organizations.[21] Jewish commentators,[22] including – as mentioned above – the definition’s original drafter, Kenneth Stern, repudiated its use on a college campus.[23] We urge you to similarly reject this measure.

III. Conclusion

We appreciate the importance of addressing allegations of anti-Semitism on campus and elsewhere. But the Act’s misguided reliance on the rejected re-definition of anti-Semitism fails to give universities the proper tools to fight anti-Semitism and other forms of discrimination. Instead, it will encourage the DOE and universities to infringe on free speech and academic freedom on campus, in violation of the First Amendment. We urge you to drop consideration of this bill and, instead, engage in meaningful efforts to address the alarming rise in anti-Semitic, racist, anti-Muslim, anti-Arab, anti-immigrant, anti-women, and anti-LGBT incidents and other forms of discrimination that have been fueled by increasing tolerance for such bigotry. This bill will only intensify targeting of already vulnerable communities that are exercising their constitutional rights to speak out for Palestinian rights. It will ultimately undermine civil liberties on campuses, while failing to address or hold accountable the sources of the alarming incidents of bigotry that are occuring on campuses and elsewhere.

Sincerely,