After a decade of using legal means to battle antisemitism in education, lawyers at The Deborah Project are confident that one of the most effective tools that educational institutions can use to ameliorate the issue is also one of the most misunderstood. Therefore, it is bitterly fought against by those institutions.
That tool is comprised of the examples included in the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism. Here’s why.
The current form of Jew-hatred can be seen in the denunciation of the Jewish commitment, shared by the vast majority of people who call themselves “Jews,” to the land and state of Israel. Today’s Jew-haters claim that they are “only” attacking Zionists, not Jews, but we know what they mean because time and again, they slip up and use the term Jew with Zionist interchangeably.
Like the Jews they despise, the haters recognize that Jews and Zion are inextricably entwined. And so, the challenge for the people protecting Jews—like The Deborah Project, a public interest law firm focused on defending the rights of Jews in American K-12 public schools and on college campuses—is to ensure that the law recognizes this as well.
The way to do this is to warrant courts and institutions to adopt a definition of antisemitism, being duty-bound to ensure that they do not discriminate in violation of civil-rights laws.
The definition section of the IHRA is hardly controversial. It states that “antisemitism is a certain perception of Jews, which may be expressed as hatred towards Jews,” and encompasses speech or conduct directed towards Jews and Jewish institutions.
It is the examples of antisemitism that relate to Israel that set off the critics. These people usually claim to be free-speech absolutists; however, their devotion to the First Amendment disappears when it comes to speech hostile to other minority groups, like the actual “N” word or when they advocate punishment for mis-pronouning individuals.
Public school K-12 educators, in particular, claim that they are being “censored” for expressing their views about Israel in the classroom. This argument fails for two reasons.
First, such educators have no First Amendment rights while on the job. When they’re working, the U.S. Supreme Court has held, their speech is not their own but their employer’s—in this case, the government. They have exactly zero legal right to express their own political views in the classroom or at any time when acting in their capacity as teachers. Public school teachers are also barred from teaching false information, and they are required to address “controversial issues” in the classroom by neutrally presenting all sides of the issue fairly, without bias or prejudice. Those legal bars should already have prevented teachers from doing the one thing that raises the most ire about the IHRA examples.
Is it permissible to prohibit the use of terms that are not explicitly discriminatory? For example, can Jews who support Israel be called, with impunity, “genocidaires” in the workplace or classroom? If the law that applies to all other minorities is applied to Jews, then the answer is a clear “no.”
The Civil Rights Act of 1964 provides a tapestry of protections for many minorities; the ban on hateful words is an unquestioned component of those protections. The courts have repeatedly recognized that terms like “welfare queen,” “illegal aliens,” “ghetto” and even “fried chicken” may “provide evidence of discriminatory intent by sending a clear message and carrying the distinct tone of racial motivations and implications.”
But the bar on offensive speech goes beyond just a rule against ugly name-calling: It reaches offensive ideas, too. So flying the Confederate Flag can also be a violation of the ban on discrimination, even though many claim it as “a symbol of heritage and sacrifice in a noble struggle to preserve states’ rights.”
The law reaches this conclusion because it evaluates challenged speech by asking not what the speaker meant by it but what the victim reasonably understood it to mean. So the speaker can proclaim all day that he’s a States’ rights enthusiast, and that he’s flying the stars and bars to advocate for a broad understanding of the Constitution’s Tenth Amendment. However, if a black man sees it and thinks “the only states’ right he’s interested in is the right to enslave me and my family,” that’s the understanding that controls, and the Confederate flag is removed.
The same rules apply to Jews, though until very recently, this minority group in America had never asserted its rights under this body of law. Now that they’re doing so, the IHRA definition imposes the same framework for assessing discrimination against Jews that has already applied for decades to discrimination against all other minorities.
Because that’s so, the IHRA definition is currently in use by 46 countries, including France, Germany, Spain, the United States and Canada. Within the United States, 37 states, plus the District of Columbia, have adopted it, as have cities such as Los Angeles, Las Vegas, Dallas, Miami, Chicago and Princeton, N.J.
In addition, contrary to the claims of its opponents that IHRA precludes free intellectual exchange, nearly 350 educational institutions globally adopted or endorsed the IHRA definition, including such elite schools as the University of Oxford, the University of Cambridge and the London School of Economics, as have some of America’s most prestigious colleges, including Harvard, Columbia, Yale and Stanford universities. There are already K-12 school districts that have adopted the IHRA definition, though when this happens, it rarely makes the national news.
Florida, Virginia and North Carolina have passed laws or executive orders urging or requiring public K-12 schools to use the definition. School districts in California, New York, New Jersey and Pennsylvania have done so as well. In the one federal case where the IHRA examples received judicial scrutiny, the court concluded that “restrictions on speech at the secondary-school level are justified in part by schools acting in loco parentis to children.”
Since the Hamas-led terrorist attacks in Israel on Oct. 7, some 71% of Jewish students have reported antisemitic harassment or discrimination at their schools. Education administrators are floundering—frequently choosing not to enrage those who insist, albeit often wrongly, that their expressed hostility towards Israel is protected by the First Amendment, rather than the Jewish students and teachers who are being harmed.
The necessary solution is a definition of antisemitism—one animated by the basic principle of U.S. civil-rights law that discrimination is to be assessed on the basis of how the victim understands it, not based on what the alleged harasser claims to have meant. We recognize a black American’s understanding of the Confederate flag, and that’s what determines whether the flag is an act of harassment: We don’t exonerate the man waving that flag because he claims to be supporting federalism.
Along similar lines, we have to ask what a reasonable Jew experiences when someone calls for “global intifada”—translated as death to Jews worldwide—or glorifies the hoped-for destruction of the Jewish state.
