During the White House Hanukkah party, President Joe Biden reiterated his long standing commitment to combat antisemitism. He promised a national strategy, a White House summit, and increased security funding. In stark terms, he identified the stakes involved: “evil—this is not hyperbole—evil will not win. Hate will not prevail.” The question now is whether Biden will follow through on these bold words, providing the policies, enforcement and resources necessary to ensure that this evil and hate are defeated.
That question is made urgent by what Biden did not say. Conspicuously, he did not mention the crucial and yet long-delayed federal regulation on combating antisemitism. The White House long ago announced that this important new rule would be unveiled in December 2022. Typically, when the White House has a policy that is expected to be well received, staffers move heaven and earth for a well-timed White House announcement. Hanukkah would have been perfect. The question now is whether the proposed rule, when it is finally proposed, will be viewed as a late present or a lump of coal.
This promised regulation, which I initially proposed during the Trump administration, is intended to codify the 2019 Executive Order on Combating Anti-Semitism. To do so, it must do two things. First, it must preserve the rule that Jewish Americans, like other ethno-religious groups, enjoy equal protection under Title VI of the Civil Rights Act of 1964. This protection, which I announced while heading the Education Department’s civil rights agency in 2004, was reiterated by the Obama administration in 2010 but has never been formalized in regulations.
Second, it must incorporate the IHRA Working Definition of Anti-Semitism, including contemporary examples relating to Israel. This is the internationally-agreed upon standard, endorsed by nearly 40 nations as well as hundreds of other governmental and non-governmental entities.
President Biden could better the Trump record by entrenching the Executive Order in the Code of Federal Regulations, further fleshing it out. Biden might also use the occasion to solidify protections for other ethno-religious groups, such as Arab Muslims, Coptic Christians and Sikhs. This would be a welcome addition.
Each of the last three administrations have built upon work done by their predecessors. During the George W. Bush administration, the Office for Civil Rights recognized that Jewish students enjoy legal protection under Title VI. The Obama administration affirmed the Bush policy, embellishing it with clarifying guidance. The Trump administration affirmed the Bush-Obama rules and, in addition, provided that federal agencies will use the Working Definition when appropriate.
The importance of maintaining IHRA cannot be overstated. Without this definition, OCR was long rudderless in its efforts to address a form of hate which it simply did not understand. And absent such a formal definition, the agency was unable to handle systemic campus antisemitism cases for nearly a decade and a half following the initial 2004 guidance.
Under the current OCR guidance, which includes IHRA, Assistant Secretary Catharine Lhamon has commendably opened several important cases involving systemic antisemitism, including the Brandeis Center’s cases Brooklyn College, the University of Vermont and the University of Southern California.
Whatever Biden does, he should not diminish use of the Working Definition by pairing it with a lesser standard. The controversial Jerusalem Definition, which some left-wing activists advocate, has been criticized for defining anti-Semitism too narrowly, misunderstanding Jewish experience and inadvertently giving cover to antisemites. It is hardly a substitute for the internationally agreed-upon standard, and its usage would significantly undermine civil rights enforcement.
President Biden’s words are strong, but his administration’s actions do not always match. Earlier this month, the Biden administration botched its presentation of federal hate crimes data. Nationwide underreporting has plummeted so far this year, especially in areas with high Jewish populations, that the FBI data mischaracterizes last year’s record spike in anti-Semitism as if it didn’t occur—falsely suggesting a decrease. Mistakes can happen. But it is hard to excuse the administration’s failure to correct these errors, now or in the future.
The stakes are high. President Biden has correctly identified the seriousness of confronting anti-Semitism. Now his administration needs to deliver a strong regulation to ensure, in his words, that evil will not win and hate will not prevail.
Kenneth L. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law, which has represented Jewish students in the New Paltz, Tufts and USC cases discussed above. He served as the 11th assistant U.S. secretary of education for civil rights.
This article was originally published by The Jewish Journal.