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December 25, 2019 11:54 am

What Will Trump’s Executive Order on Antisemitism Mean for Jewish Students?

avatar by Shiri Moshe

Analysis

The University of California-Los Angeles campus. Photo: Photo: Pixabay.

Since its announcement earlier this month, US President Donald Trump’s executive order on combating antisemitism has drawn both praise and criticism, underscoring the tensions that have surrounded efforts to protect Jewish students from a years-long escalation in campus hostility. The ensuing debate has raised valuable questions — foremost among them, whether the order will help those it was designed to protect, and at what cost.

The order itself does not mark the first time that Jews were guaranteed protections under Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on “race, color or national origin” in federally-funded programs. Earlier readings of the law had already extended its protections to members of religious groups — including Jews, Muslims and Sikhs — who may face discrimination based on their actual or perceived shared ethnic characteristic.

But a specific definition of antisemitism had not previously been recommended to Title VI enforcement agencies, and the executive order’s embrace of the International Holocaust Remembrance Alliance (IHRA) working definition and its contemporary examples is what set it apart. It is also what put free speech and anti-Zionist groups on alert, despite the order’s assurance that its enforcers “shall not diminish or infringe upon any right protected under Federal law or under the First Amendment.”

Through its listed examples, the IHRA definition recognizes that anti-Zionism — understood as the rejection of the Jewish people’s right to self-determination — is antisemitic, though it asserts that criticism of Israel “similar to that leveled against any other country” is decidedly not.

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Supporters of the definition, among them major Jewish groups in the US and abroad, say it can help Title VI enforcers determine what antisemitism actually is, including when it’s cloaked as legitimate commentary on Israel — the most prominent type of antisemitism students report facing on many campuses, and the trickiest to tackle.

Opponents maintain that anti-Zionism is a valid political expression, and that recognizing it as antisemitism would chill campus discourse on Israel while disenfranchising anti-Zionist students and scholars, particularly Palestinians.

“We see it very clearly as an anti-Palestinian racist campaign that targets Palestinian activism in a way you don’t exactly see with other human rights advocacy,” Lama Hantash, a founding member of Duke Students for Justice in Palestine, told The New York Times last week.

Dima Khalidi, director of the group Palestine Legal, similarly warned that the “executive order is not intended to combat antisemitism, but instead is a tool to chill and punish the growing movement for Palestinian freedom.” These concerns were echoed by J Street, an advocacy and lobbying group that supports a two-state solution to the Israeli-Palestinian conflict.

In comments to The Algemeiner, Jonathan Friedman, director of the free expression group PEN America’s campus speech project, warned that guiding universities “to explicitly rely” on the IHRA’s list of contemporary examples of antisemitism “for purposes of ferreting out discrimination on campus puts students, faculty, and administrators on notice that certain speech may be considered a proper basis for civil rights complaints.”

“The climate for speech regarding the Israel-Palestine conflict on college campuses is already fraught,” Friedman said. “While universities should be vigilant to ensure that such debates do not veer into antisemitism, Islamophobia, or other forms of bigotry, that obligation is not best fulfilled through the enforcement of an official list of potential statements that cross the line.”

Yet Professor David Bernstein, executive director of the Liberty & Law Center at George Mason University, pointed out in comments to The Algemeiner that under the executive order, the consideration of the IHRA definition by Title VI enforcement agencies “is limited to situations in which there is already an underlying act of alleged antisemitic discrimination,” and that the definition itself “isn’t supposed to be applied to find liability, only discriminatory intent.”

Concerns that anti-Zionist students or faculty members could be penalized for simply engaging in speech that breaches the IHRA examples of antisemitism, like claiming that “the existence of a State of Israel is a racist endeavor,” were misguided, he suggested.

Not only are these statements protected by the First Amendment, but “saying antisemitic things is not itself illegal or a violation of Title VI,” Bernstein noted. “So no student or faculty member could be penalized under Title VI for saying something arguably (or definitely) antisemitic.”

The First Amendment and Title VI, when properly enforced, would not allow for political speech to create a liability for the university, as long as that speech was not “aimed at a particular student in a harassing way,” Bernstein added.

“The only legitimate concern is that a university may fear a complaint for tolerating a ‘hostile environment’ for Jewish students by tolerating antisemitic speech,” he said.

“[It’s] true that some university administrators, fearful of such liability, may try to suppress speech for that reason, or at least use it as an excuse,” Bernstein acknowledged. “But that’s also true of rules protecting black students, female students, etc. — it’s not a unique problem to Jews, nor to the IHRA definition.”

Alyza Lewin, president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law, said that Title VI enforcers could determine that a hostile environment was present on a certain campus if racist rhetoric was “persistent and pervasive, or is so severe that it ends up impacting the targeted group’s ability to engage in and … benefit from the opportunities that the university has to offer.”

“The university, if it does nothing, is at risk of ultimately facilitating the creation of this hostile environment,” Lewin told The Algemeiner.

She said the discriminatory speech some Jewish students face on campus was increasingly escalating into conduct, which sees them “excluded from certain activities or opportunities in the university,” unless they’re willing to shed or hide “the Zionist part of their Jewish identity.”

The executive order contains “a very loud message to the universities … in a language that the universities will understand,” Lewin added. “I think it can make a very significant difference to the quality of life of Jewish students on campus.”

Yet Tammi Rossman-Benjamin, director of the campus antisemitism watchdog AMCHA Initiative, expressed reservations on whether the order will have a positive impact on Jewish students, particularly in the short-term.

In recent years, amid the public debate over the Anti-Semitism Awareness Act — stalled bipartisan legislation that the order was modeled after — the IHRA definition has faced a “backlash” on campuses, Rossman-Benjamin told The Algemeiner.

“I fear that this is actually going to make life more difficult for Jewish students because of the day-to-day interactions that they have with their peers and professors, who resent this executive order and who feel that Jewish students should not be protected in the same way that other minorities are protected on campus,” she said. “They don’t feel that Title VI protections should extend to Jewish students, particularly with respect to the type of harassment that is most prevalent on campuses, which is Israel-related harassment.”

Such sentiments, while rejected by herself and others, could make enforcement of the order “very difficult,” Rossman-Benjamin argued, and potentially undermine the end goal of addressing antisemitic discrimination.

She recommended addressing the “tsunami of intolerance” on campuses with a more universal approach — “a system that protects everyone equally” from harassment and intimidation, regardless of the motivation of the perpetrator or the identity of their victim.

“No student on college campus should have their right to express themselves or to fully participate in campus life taken away, for any reason,” Rossman-Benjamin said.

She applauded the Trump administration for recognizing “that campus antisemitism is a problem,” and that “Jewish students are not protected — they haven’t been consistently and adequately protected by federal law.”

“Ultimately, that’s what we need to focus on,” Rossman-Benjamin said. “How do we best protect Jewish students — not just under Title VI, but how do we get Jewish students protected. Period.”

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