Posted by Heba Mohammad on November 15, 2017 in Blog

Those who listened to last week’s House Judiciary hearing on “Examining Anti-Semitism on College Campuses” may have been left with the impression that protecting communities from bias or hate, while also respecting the right to free speech, is complicated. Reacting to this discord, Representative John Conyers Jr. (D-MI) used his opening statement to set a tone of conciliation by saying, “Equality and free speech are not, and must not, be pitted against each other as if they were opposing values.” This false conflict weighed heavily over the hearing because of the way the Anti-Semitism Awareness Act (AAA) was presented as a response to rising anti-Semitism rather than an attempt to silence pro-Palestinian advocacy.

On its face, this bill appears to be a response to acts of anti-Semitism on college campuses. The AAA would codify a working definition of anti-Semitism written exclusively for foreign purposes for use by the Department of Education when investigating harassment claims, a power already granted to the DOE by Title VI of the 1964 Civil Rights Act. Title VI allows the DOE to investigate harassment based on race, color, or national origin. Supporters of the AAA argue: 1) the current law does not offer recourse for Jewish students targeted by anti-Semitic harassment on college campuses, and 2) a definition will offer clarity on what constitutes anti-Semitism, making it more likely that anti-Semitic behavior on campuses will be identified and perpetrators will be held accountable. 

This narrative suggests that combating anti-Semitism on campuses falls solely under the purview of the DOE. The fact is, religious discrimination is already prohibited at public universities, and the prohibition is enforced by the Department of Justice, thanks to Title IV protections of the same Civil Rights Act. So, what need will the AAA fulfill?

The definition of anti-Semitism proposed in the AAA provides the answer. The proposed State Department definition is one that conflates anti-Israeli rhetoric or positions with anti-Semitism. This conflation is both the crux of the free speech concerns, and the goal of this legislation. The flawed nature of this approach was highlighted by none other than the author of the very definition proposed. In his testimony for the hearing, Ken Stern explained the sound rationale for rejecting its application on college campuses by stating the definition was “being abused in Title VI cases, because it was being employed in an attempt to restrict academic freedom and punish political speech.” 

Indeed, the attacks on free speech to stifle pro-Palestinian advocates on college campuses are not new, but they have been rebuked in the past precisely because they infringe on freedom of speech. 

Advocates of the AAA claimed to draw a distinction between criticism of Israel and anti-Semitism, but erased that distinction in practice. Without recognizing the irony in his statement, Rabbi Abraham Cooper of the Simon Wiesenthal Center decried the “suppression of speech” pro-Israel students experience when expressing their views. Ultimately, it was Dr. Barry Trachtenberg, professor of Jewish Studies at Wake Forest University and a witness at the hearing, who summed up the intentions behind this bill. He identified alarm-raising commentators as “motivated less by an actual threat facing American or world Jewry than they are part of a persistent campaign to thwart debate, scholarly research, and political activism that’s critical of the state of Israel.” 

Attorney Paul Clement, a supporter of the AAA, offered a legal response to those concerned about infringements on protected speech: the savings clause, he said, will prevent the unconstitutional application of this bill. Savings clauses are often included in contracts, and serve as a cushion to protect the integrity of an agreement if portions are invalidated. In this case, the clause says the policy will not be used to infringe on free speech. In practice, as explained in PEN America’s White Paper “Wrong Answer,” the savings clause will only be effective once an investigation is already underway, and the burden of invoking free speech protections will be on the defendant. The inclusion of this clause is a symbolic attempt to make the statute overly broad, knowing its constitutional enforceability is unlikely anyway.

Pro-AAA witnesses were quick to point out this bill would only require campus administrators to consult this definition as a guideline when deciding if harassment is anti-Semitic; it is non-binding. Despite this hair splitting, an implemented policy would achieve the goal of intimidating Israel’s critics, causing students, faculty, and other campus community members to second guess their ability to speak openly, thereby limiting open debate, academic freedom, and students’ critical thinking skills. The non-binding nature of the policy would be problematic if this bill were truly about punishing anti-Semitism, but proponents are unbothered, presumably because it still achieves the actual subversive goal of chilling the speech of Israel’s critics.

It is necessary to note here that the AAA is just one method some pro-Israel advocates are using to circumvent reason to achieve their goal of establishing a free speech exception for Palestine. It is not coincidental that the Trump Administration’s nominee to lead the Office of Civil Rights at the Department of Education, Kenneth Marcus, has a long history of construing anti-Israel positions as anti-Semitic. Marcus was the first to use Title VI to attempt to chill pro-Palestine activism, and, although he lost all those cases which were brought against the Office of Civil Rights at the Department of Education, his work appears to have inspired the AAA. The nomination and potential confirmation of Marcus to head of the very office he sought to influence---the same office which will oversee proper application of the AAA’s definition---would be an effective non-legislative victory to further the goal of discouraging pro-Palestinian speech. 

Perhaps most troublingly is that, during a time when hate crimes are on the rise, the conflation of the criticism of Israel with anti-Semitism is being advanced simply to further ingrain the Palestinian exception to free speech in our political system. The controversy surrounding the AAA jeopardizes future proposals for effective anti-hate policies because it promulgates the false concept that protecting communities from hate is incompatible with our collective rights, including the right to free speech. Whether or not it passes, the AAA has already birthed a factually distorted argument for those who oppose such protective measures for targeted communities.

We all agree something needs to be done to address the rise of hate and anti-Semitism, but the Anti-Semitism Awareness Act is not the answer. We will continue to remain vigilant of any efforts to infringe on sacred rights like free speech while finding sincere ways to combat hate in our country.