The executive order that defines and combats anti-Semitism without stifling speech

Applying Title VI of the Civil Rights Act of 1964 to Jews is not new. It is the “adoption” of the IHRA Definition of Anti-Semitism that’s causing all the ruckus.

U.S. President Donald Trump displays his signature on an Executive Order committing his administration to combating the rise of anti-Semitism during an afternoon Hanukkah reception in the East Room of the White House on Dec. 11, 2019. Credit: Official White House Photo by Joyce N. Boghosian.
U.S. President Donald Trump displays his signature on an Executive Order committing his administration to combating the rise of anti-Semitism during an afternoon Hanukkah reception in the East Room of the White House on Dec. 11, 2019. Credit: Official White House Photo by Joyce N. Boghosian.
Alyza Lewin
Alyza D. Lewin
Alyza D. Lewin is president of the Louis D. Brandeis Center for Human Rights Under Law and a founder and partner of Lewin & Lewin, LLP.

Is it anti-Semitism to support the destruction of the one and only Jewish nation-state—home to approximately half of the Jews in the world today? Is it anti-Semitism to say that Jews do not have a right to self-determination—that Jews have no right to exercise sovereignty within any borders in their ancestral homeland, the Land of Israel?

This question lies at the heart of today’s debate over anti-Semitism.

When U.S. President Donald Trump signed the Executive Order on Combating Anti-Semitism last week, he answered this question in the affirmative by incorporating the International Holocaust Remembrance Alliance (IHRA) Definition of Antisemitism, which includes as a contemporary example of anti-Semitism “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.”

Applying Title VI of the Civil Rights Act of 1964 to Jews, as the Executive Order does, is not new. Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color and national origin in programs and activities that receive federal funding. National origin discrimination has been interpreted for years to include discrimination against those who have shared ancestry or ethnicity. In this way, Title VI protects religious groups such as Jews, Sikhs and Muslims. That part of the Executive Order was not new. What is new is that the Executive Order requires all executive branch agencies and departments charged with enforcing Title VI (not just the U.S. Department of Education) to apply the IHRA Definition of Anti-Semitism when determining whether unlawful conduct has been motivated by discriminatory intent. It is the “adoption” of this definition of anti-Semitism that is causing the ruckus.

It is important to note that there is nothing in either the IHRA Definition or the Executive Order that precludes anyone from criticizing the policies of the government of Israel. In fact, the IHRA definition explicitly states that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.” So why are some individuals opposed to this definition? Because it makes clear that opposing Israel’s existence as a Jewish homeland is anti-Semitism. Those who oppose Israel’s right to exist as a Jewish nation-state condemn the Executive Order’s adoption of the IHRA definition because it labels their position anti-Semitic. Anti-Semites don’t like to be called anti-Semites.

It is not unlawful in the United States to make racist or anti-Jewish comments. In America, the First Amendment protects your right to express yourself as a bigot. Nothing in the Executive Order changes that fact. But the First Amendment does not insulate and prevent those who make racist or anti-Semitic comments from being labeled as racists and anti-Semites. By incorporating the IHRA definition, the Executive Order delineates what constitutes anti-Semitism so that it can be recognized, labeled and condemned.

Those who believe that the Jews have a right to self-determination in some borders in the Land of Israel do not have to agree with the policies of the Government of Israel. There are Jews in Israel and around the globe who support the right of a Jewish nation-state, but who do not support some or all of the policies of the current government. Criticizing those policies is not anti-Semitic. What is anti-Semitic, according to the IHRA Definition, is claiming that there is no right to a Jewish state within any borders.

Denying the right of Jewish self-determination is tantamount to supporting the destruction of the world’s only Jewish nation-state. It means supporting the destruction of the safety net for Jews who are persecuted around the globe. And it demands that Jews shed what many consider a key component of their Jewish identity—namely, the yearning and determination of the Jews to return to Zion (Jerusalem) and to re-establish Jewish sovereignty in their ancestral homeland. Those who support self-determination for other groups (like the Palestinians, the Kurds or the Tibetans), but deny the right to Jewish self-determination apply a double standard to the Jews is anti-Semitism.

Zionism—the yearning and desire of Jews to exercise their right to self-determination and to re-establish a Jewish homeland in the Land of Israel—is an inherent part of the Jews’ shared ancestry and ethnicity. Zionism as the political movement of the Jewish people may have originated in the 19th century, but the “determination to return to Zion,” is as old as Abraham and the Bible. To be a Zionist means to support the right of Jewish self-determination. Those who oppose Zionism deny Jews this right. Judea Pearl, father of the late journalist Daniel Pearl, coined a term for this. He calls it “Zionophobia”—an irrational fear or hatred of a homeland for the Jewish people. The IHRA definition recognizes that “Zionophobia”—denying this fundamental core Jewish belief—is anti-Semitism.

Colleges have failed to recognize the problem

Not all Jews are Zionists, just as not all Jews observe the Sabbath or adhere to kosher dietary rules. However, just as it is anti-Semitic to attack, harass or discriminate against Jews on the basis of their Sabbath or kashrut observance, so, too, is it anti-Semitic to attack, harass or marginalize Jews who advocate, express or support the Zionist part of their Jewish identity.

To combat anti-Semitism effectively, we must recognize that it targets all Jews. It doesn’t matter how one identifies—Ashkenazi, Sephardi, Mizrahi, Conservative, Orthodox, Reform, Chassidic, haredi, Chiloni, Zionist or non-Zionist. If a Jew is targeted because he or she expresses a component of his or her identity as a Jew, that is anti-Semitism. By incorporating the IHRA definition, the Executive Order does not define all Jews as Zionists. It merely recognizes that Jews (including students on college campuses) who view Zionism as a key component of their identity as Jews may not be harassed and demonized for expressing or supporting that part of their ethnic and religious identity.

On university campuses, anti-Zionist activity has moved well beyond speech. Today, students who express support for Israel’s existence as the Jewish homeland are boycotted, harassed, demonized, excluded and pushed to the periphery. It makes no difference whether or not these students support the policies of the current government of Israel. If they express support for the Jewish nation-state at all, they are treated by anti-Israel groups as “the enemy,” and are forced to closet their Zionism and often their Judaism in order to be accepted as full members of the college community. Students report being afraid to wear items that distinguish them as Jewish, including kipahs, Stars of David and even T-shirts with Hebrew letters, because such items render them targets for abuse.

University administrators have repeatedly failed to address this problem adequately, primarily because they have not understood when and how anti-Zionism becomes anti-Semitism. Equally importantly, administrators have not appreciated that failure to protect students who express the Zionist part of their Jewish identity from persistent and pervasive harassment and discrimination will subject the universities to legal liability under Title VI of the Civil Rights Act. Trump’s Executive Order made both of these points abundantly clear. It clarified for universities that, as the IHRA definition provides, the following are some contemporary examples of anti-Semitism:

  • Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
  • Applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.
  • Using the symbols and images associated with classic anti-Semitism … to characterize Israel or Israelis.
  • Drawing comparisons of contemporary Israeli policy to that of the Nazis.
  • Holding Jews collectively responsible for actions of the State of Israel.

Recognizing these as examples of anti-Semitism does not make expression of these views unlawful. Trump’s Executive Order does not bar students or professors from expressing these perspectives, and it certainly does not prevent students or professors from engaging in constructive, challenging dialogue regarding the policies of the current government of Israel.

However, the Executive Order puts universities on notice that they must treat this type of anti-Semitism the same way they treat racism or other forms of discrimination. Universities must call out and condemn as anti-Semitic the persistent and pervasive demonization of Zionists, just as they would call out and condemn persistent and pervasive anti-black, anti-Hispanic or anti-Muslim rhetoric. When anti-Semitic rhetoric is ignored, it escalates into anti-Semitic conduct. Universities, therefore, must act to prevent the creation of a hostile environment on campus. Failure to protect students will, according to Trump’s Executive Order, result in legal liability and could cause the U.S. Department of Education to withhold federal funding from the offending institution of higher learning.

As anti-Semitism around the globe continues to rise, it is imperative that society define it. If we cannot define it, we will never be able to recognize and effectively combat it. Trump’s measure took a bold and necessary first step by prescribing a domestic definition for U.S. federal agencies. Now we must utilize this definition to combat anti-Semitism in all its forms and from all sides of the spectrum—in academia, in politics, in the media, in places of worship, online and in our own communities.

Alyza Lewin is president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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