Posted by Arab American Institute on December 11, 2019 in Blog

Today, President Donald Trump signed an Executive Order that constitutes a direct assault on academic freedom, First Amendment rights, and advocacy for Palestinian human rights.

AAI has long opposed efforts to stifle criticism of Israel and advocacy for Palestinian rights under the guise of combatting anti-Semitism, including congressional efforts like the “Anti-Semitism Awareness Act.” These are anchored in efforts to legitimize a working definition of anti-Semitism, since adopted by the International Holocaust Remembrance Alliance (IHRA), that was never intended for use in the United States. The author of the definition himself, Ken Stern, testified to Congress that his working definition has been “abused” and “employed in an attempt to restrict academic freedom and punish political speech.”

As the Supreme Court held in FEC v. Wisconsin Right to Life, “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” Accordingly, it would be inappropriate to list criticism of Arab countries as examples of hate toward Arab Americans, just as the Executive Order adopts criticism of Israel as an example of anti-Semitism. One must be able to freely express criticism of our own government, any foreign government, or any policies we deem objectionable—whether on college campuses or in the halls of Congress.

Instead, the Executive Order requires the Department of Education to consider this problematic working definition in “identifying evidence of discrimination,” which includes “the targeting of the state of Israel” within the definition of anti-Semitism. While Section 5 of the Order attempts to allow proponents to claim it will not be used for unconstitutional ends, it ultimately promulgates federal policy that will chill conduct and cause individuals to self-censor. This order will in effect censor those defending Palestinian human rights until a lawsuit is brought and the slow machinery of the judiciary strikes down the action. 

In 2017, AAI opposed the nomination of Ken Marcus to lead the Office of Civil Rights at the Department of Education—a chief proponent of the abuse of this working definition as a means of curtailing criticism of the Israeli government. In a piece for The Jerusalem Post, Marcus explained that he is “creating a very strong disincentive for outrageous behavior by students in particular. Israel-haters now publicly complain that these cases make it harder for them to recruit new adherents… Needless to say getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.”  After Marcus was confirmed by a party-line vote in 2018, AAI warned his confirmation would in time lead to a “propensity to use the authority of the federal government to suppress criticism of a foreign country—Israel—under the guise of combatting anti-Semitism.” That time has come. 

Notably, the Department of Education’s Office for Civil Rights, Title VI’s prohibition of discrimination based on race, color, or national origin already “protects students of any religion from discrimination, including harassment, based on a student’s actual or perceived: shared ethnicity or ethnic characteristics, or citizenship or residency in a country with a dominant religion or distinct religious identity.” That existing federal civil rights laws already protect Jewish students from discrimination on campus should cast doubt on the purported intentions behind this Executive Order. Rather than protecting Jewish students from burgeoning anti-Semitism, the goal of this Executive Order is to protect Israel from criticism and suppress advocacy for Palestinian human rights under the threat of federal civil rights enforcement.

AAI Executive Director Maya Berry stated the following:

“Anti-Semitism is a real and growing problem. As AAI reported last month, law enforcement agencies reported a record number of violent anti-Jewish hate crime offenses in 2018. It is imperative that the Department of Education, which has rightly interpreted Title VI to extend protections against anti-Semitism, maintain a focus on real civil rights violations. Unfortunately, today’s Executive Order makes no effort to actually address this deadly problem. Instead, it furthers a definition of anti-Semitism that was written as a working definition by a State Department official specifically for non-legally binding foreign applications. Today’s action is just the latest instance of how this working definition has been intentionally laundered through an echo chamber of bills, resolutions, agencies, and bodies in hopes of granting the appearance of legitimacy to the politically motivated desire to conflate the real problem of anti-Semitism with criticism of the state of Israel.

We must not be distracted by sensational headlines or tweets. The crux of the problem is the application of the IHRA definition of anti-Semitism. In utilizing this defintion, President Trump’s Executive Order is dangerous because it is designed to restrict pro-Palestinian advocacy, violates our First Amendment right to free speech, and draws the Department of Education’s limited focus and resources away from addressing actual civil rights violations on our college campuses. This politically motivated order will harm civil rights, will be challenged, and will be overturned. AAI will continue our important work to improve hate crime data collection and combat the rise in white nationalist violence. We welcome the partnership of all government agencies in those efforts, which are aimed at ultimately reducing the number of victims of hate, instead of creating a subterfuge to protect Israel from critical treatment on American campuses.”


Other Resources:

Signatories to Dec. 4 Letter Supporting Title VI Cases Against Palestinian Human Rights Activism Have Engaged in Aggressive Campaigns to Stifle Free Speech, Trafficked in Anti-Arab, Anti-Immigrant, and Anti-Muslim Rhetoric, and Courted White Nationalists.