The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Hysterical Opposition to the Antisemitism Awareness Act is Unfounded


I have a piece up at National Review Online about the Antisemitism Awareness Act. As described in my article, the most important feature of the act is that it codifies administrative guidance that began in the Bush Administration holding that Jews are protecting from ethnic discrimination by Title VI of the 1964 Civil Rights Act. Before 2003, the Department of Education treated Jews an exclusively religious group not covered by the Act.

The controversial part of the Act is that it codifies the International Holocaust Remembrance Alliance's (IHRA) working definition of antisemitism in the context of determining discriminatory intent for related allegedly discriminatory actions in Title VI enforcement. That definition gives examples of statements that, depending on the context, could be antisemitic. Some of those examples relate to Israel, and one of those discusses the use of anti-Jewish tropes with origins in Christian polemic used against Israel. This had led to hysterical and wildly inaccurate claims that the law criminalizes criticism of Israel, or will somehow lead to making Christianity illegal. I explain in the peace why these claims are nonsense. I note that It's hard to imagine anyone sensible arguing that the statement, "Of course Israel is massacring Palestinians, that's exactly what Christ-Killers would do" can't be evidence of discriminatory intent for related action.

More sober critics, like co-blogger Eugene V. earlier today, worry about the chilling effect it will have on anti-Israel speech given that hostile environment cases sometimes rest in part on speech that would otherwise be constitutionally protected. I respond so such critics as follows:

That is indeed a real concern. But that's a problem with hostile-environment law more generally. With or without official adoption of the IHRA definition, university officials already have an incentive to clamp down on all sorts of speech that could be deemed hostile to various groups. In practice, though, they mostly use Title VI as an excuse to try to censor speech that offends woke sensibilities.

That, in fact, is the broader reason wokesters are hostile to AAA. Currently, there is a double standard, with antisemitic speech that might contribute to a hostile environment treated with much more equanimity than speech hostile to other groups. This is illegal discrimination against Jewish students, and is essential to the entire DEI edifice. If the AAA and other new laws incentivize universities to treat members of all protected classes (including white students discriminated against based on race) equally, than the whole ideological structure of DEI as we know it, which depends on preferences for favored groups, collapses.

Returning to the more hysterical critics, I note that

the Department of Education has been using the IHRA definition of antisemitism for Title VI enforcement since 2018. As president, Donald Trump also issued an executive order making the IHRA definition applicable government-wide. Over 30 states and dozens of localities have adopted the IHRA definition. Criticism of Israel is still legal, as is, of course, reading and preaching the New Testament. Those who claim that the limited adoption of this definition for evidentiary purposes in Title VI proceedings is a big step on the road to authoritarian dystopia are displaying a combination of ignorance and mendacity, often with a significant dollop of anti-Jewish conspiracy theory.

I never say in the piece whether I like the IHRA definition, or whether I think it should be codified for Title VI (or other) purposes. But there is so much misinformation floating around that I thought it was important to clarify the very low stakes of this bill, given that it does not change the status quo.