Why the Proposed "Antisemitism Awareness Act" Is a Bad Idea

There is little doubt that many university campuses would benefit from increased awareness of antisemitism.  Recent years have seen more expressions of anti-Jewish prejudice – often but not always in the guise of anti-Zionism – than can be ignored.  At UCLA, for example, a Jewish student was initially denied an appointment in the student government because she was “active in the Jewish community” and therefore thought incapable of being unbiased.  At Stanford, a student senator said that “Jews controlling the media, economy, government and other societal institutions” was a “very valid discussion.” More notoriously, Oberlin’s Prof. Joy Karega was dismissed from the faculty, following the discovery of her endorsement of anti-Jewish conspiracy theories, which included claims that could have been lifted from the Protocols of the Elders of Zion.  The phenomenon is not limited to the U.S. At Toronto’s Ryerson University, a walkout of the General Student Union meeting was organized to prevent approval of a Holocaust Awareness resolution (by eliminating the necessary quorum).

Critics of Israel have often engaged in intellectual gymnastics in order to justify what would otherwise be seen as blatant prejudice.  When Steven Salaita, for example, suggested that Israeli Prime Minister Benjamin Netanyahu of Israel might appear on television wearing a necklace of children’s teeth, the allusion to ritual child murder was simply shrugged off by his defenders. (Salaita also compared "Zios" to scabies, which evidently did not remind his supporters of the days when Jews were called vermin).  Joy Karega’s conspiracy theories – including the accusation that Israel was behind the 9/11 attack, the Charlie Hebdo murders, and the downing of the Malaysian Airlines flight – were dismissed as merely “personal beliefs,” apparently worthy of actual consideration, by an otherwise reasonable member of the Oberlin faculty. 

There is not much, it seems, that cannot be rationalized when it is offered on behalf of anti-Zionism.

So yes, there is serious need on many campuses for increased awareness of antisemitism.  But that does not call for the federal government to take drastic steps, as would be the case if Congress were to pass the proposed Antisemitism Awareness Act, which is scheduled for consideration by the House of Representatives in early 2017 (it has already passed the Senate).

The Act would require the Department of Education to determine charges of anti-Jewish bias and discrimination – pursuant to Title VI of the Civil Rights Act – by considering the State Department’s definition of antisemitism, (which is in turn modeled on a definition developed by European Monitoring Center on Racism and Xenophobia).  The definition itself quite reasonably recognizes that antisemitism is often expressed in the language of anti-Zionism, including “demonizing Israel,” applying “double standards” to Israel, and “using the symbols and images associated with classic anti-Semitism to characterize Israel or Israelis.”  Nonetheless, it would be a grave mistake to write it into federal law.

As my friend Kenneth Stern pointed out in a recent New York Times oped, the definition “was intended for data collectors writing reports about anti-Semitism in Europe,” not for the purpose of imposing campus discipline, and certainly not for withholding federal funds, which would be required under Title VI for a violation involving antisemitism. (Ken was the principal author of the original definition, under the aegis of the EUMC.)

An inclusive definition of antisemitism is important for public understanding and civic education, especially when it comes to Israel, but it would be a wrong to turn it into a bludgeon.  The risk, therefore, is that the State Department definition of antisemitism could be used to cut off campus debate over Israel, or to silence advocates of the Boycott, Divestment, and Sanctions (BDS) movement. 

As the ACLU explained, in a letter opposing the Act, 

Eliminating truly anti-Semitic conduct should be a goal of our entire society. Indeed, we should all actively involve ourselves in encouraging our brothers and sisters to refrain from anti-Semitic conduct and speech. It is offensive and harmful. But the First Amendment prevents the federal government from using its great weight to impose severe penalties on a person simply for sharing a political viewpoint critical of Israel.

Anti-Israel viewpoints too often drift into Jew baiting, but it does not have to be that way, as I recently learned in a conversation with a Hillel director at a southern university.  A group of pro-Palestinian students at the school had been discovered exchanging tweets that expressed vicious anti-Jewish sentiments, including praise for Hitler and repeated references to “Jewish dogs.”  The offending students were called into individual sessions with the dean of students, at which it was made clear that such comments were unacceptable in a campus community. The dean later met with the Hillel director and the advisor to the Muslim Students Association, and explained that the authors of the tweets had sincerely apologized, expressing great shame and remorse at their behavior.  The conduct has not been repeated.  Instead, relations between the Jewish and Muslim students have been positive, including mutual support following the election of Donald Trump.

Opposition to Israel takes many forms.  Some of them are antisemitic in nature, and some are not.  The distinction is important, but it tends to be lost on both sides of the argument. It is crucial both to confront antisemitism on campus, and also to allow room for vigorous debate.  The proposed Antisemitism Awareness Act threatens to accomplish one goal while squelching the other. As well-meaning as it might be, there is simply too much room here for overbreadth, error, or abuse.

Comments

[anon]

Would not enforcement of existing anti discrimination law help here? How many of us have heard, with respect to a new hire, "Just what we need, another middle aged white male Jew." In fact, I've personally heard such discussion and these expressions have reminded of nothing more than Borat. Indeed, that is the level upon which many legal faculty routinely operate.

Second, what is wrong with striking fear into the hearts of the bitter anti-Semites. If anything, what we have "discovered" is, as in Animal Farm, when the oppressed obtain power, they become their oppressors. These folks truly need a good strong dose of their own medicine. It is they that need to go into reeducation about bigotry and prejudice. Let the remedies being with mandatory "sensitivity" training for the offenders!

Third, every element of law school education must be cleansed of the bigotry that has gained predominance and currency of late. Again, too many members (most) of groups who have felt themselves "oppressed" simply lack the empathy and depth to understand that not all members of other races and genders have led the privileged lives that so many of them have had (best schools, preference in hiring and promotions, etc).

It is time to do what we have claimed to be doing all along: Be Fair. That means stop giving a leg up to folks who have enjoyed economic and social privilege and start helping those who better represent folks who have had to overcome obstacles and have achieved nevertheless (if this is the value to be promoted). If the self righteous among us could, at long last, look past their own prejudices, they might begin to understand the human condition a bit better.

ALl in all, however, no bill or law should be aimed so exclusively at the anti Jew hate that is so accepted in legal academia. All hate based on superficial identification- including hatred of white males, for example - must be addressed and eradicated. This would be easier if the "new" boss wasn't so much like the "old" boss.

Just go back and review what it is that you supposedly believe and the values you supposedly uphold and start believing and upholding!

[David Schraub]

I wish that ACLU letter had the courage of its convictions, because as written the excerpt you quote does more to obscure than illuminate in its swap of from "anti-Semitism" in the first half to "critical of Israel" in the second. The thing is, it would be just as accurate if it was consistent throughout. The below:

"Eliminating truly anti-Semitic conduct should be a goal of our entire society. Indeed, we should all actively involve ourselves in encouraging our brothers and sisters to refrain from anti-Semitic conduct and speech. It is offensive and harmful. But the First Amendment prevents the federal government from using its great weight to impose severe penalties on a person simply for sharing an *anti-Semitic* political viewpoint."

Would be absolutely right. One could fairly say that it doesn't matter if the ASAA does perfectly capture only anti-Israel views which are anti-Semitic, because government cannot use "its great weight to impose severe penalties on person simply for sharing a political viewpoint" (which anti-Semitism is). But by swerving at the last moment to "critical of Israel" language, it both blurs that principled stance and implies that ASAA indiscriminately bars speech simply on the basis of it being "critical of Israel," which it does not.

Here is a link to my thoughts on the bill: http://dsadevil.blogspot.com/2016/12/free-speech-and-discriminatory-motive.html

[Captain Hruska Carswell, Continuance King]

The government should be in the business of protecting liberty, promoting democracy here and abroad, maintain security from enemies (environmental and human), build infrastructure, and foster economic development. It should stay away from morals education or favoring one religion over another. It should stay the hell out of religion. That would include abortion, gay marriage, the bedroom and this anti-Semitism thing.

I can take care of myself. I can defend myself. The interwebs are remarkable tools for outing folks like Joy Karega and the others referred to above in the post. This is the best enforcement tool ever devised for getting folks to stop acting like asses. Kind of like the FBI wanted posters at the Post Office.