December 11, 2019
What is the purpose of this legislation?
The legislation is designed to help the Department of Education and Department of Justice effectively determine whether an investigation of an incident of anti-Semitism is warranted under their statutory anti-discrimination enforcement authority.
- Title VI of the Civil Rights Act of 1964 is one of the most important federal education anti-discrimination statutes. But it only prohibits discrimination on the basis of race, color, or national origin. Both the Department of Justice and the Department of Education have properly concluded that Title VI also prohibits discrimination against Jews, Muslims, Sikhs, and members of other religious groups when the discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics – or when the discrimination is based on actual or perceived citizenship or residence in a country whose residents share a dominant religion or a distinct religious identity.
- In October 2010, the Department of Education Office for Civil Rights (OCR) sent a very welcome Dear Colleague letter to schools across the country announcing they would be enforcing their inclusive reading of Title VI authority – and emphasized new responsibilities for schools under this interpretation. However, OCR did not provide guidance on what constitutes anti-Semitism. This bill provides a reference point that can be useful in these cases, including instances when targeted, discriminatory anti-Semitic conduct may be couched as anti-Israel or anti-Zionist.
What definition of anti-Semitism does the legislation propose?
The legislation uses a 2016 definition adopted by the International Holocaust Remembrance Alliance (IHRA), of which the United States is a member. This definition includes examples that illustrate ways in which anti-Semitism manifests itself with regard to the State of Israel.
- The definition, adopted by the State Department, has been a useful tool that has increased the effectiveness of the State Department’s monitoring of anti-Semitism abroad.
- To effectively address reported anti-Jewish incidents, it is necessary to understand the evolving, current manifestations of anti-Semitism. The IHRA definition includes useful illustrative examples and can be an important resource. However, it is also vital to accurately distinguish First Amendment protected speech – including disagreement and even harsh criticism of the government of Israel – from harassing, intimidating, and discriminatory anti-Semitism.
- This legislation instructs the Department of Education to “take into consideration” this definition “as part of the Department’s assessment” of whether incidents are motivated by anti-Semitism intent when investigating possible violations of Title VI of the Civil Rights Act of 1964 based on individuals’ Jewish heritage or ethnicity.
- This legislation will not affect current coverage of other religious groups under Title VI – and it will not change substantive rights or obligations. But utilizing the IHRA definition can help guide the Department of Education in understanding the changing nature of anti-Semitism in order to more effectively determine whether possible legal violations were motivated by targeted, unlawful, discriminatory anti-Jewish animus.
- ADL coalition-building goals align with the legislation. We want students of all backgrounds and identities to feel secure in an environment free from harassment and intimidation. Ensuring that other groups with “shared ethnic characteristics” are covered under the law – and putting mechanisms in place to better understand hate and bigotry, is beneficial.
Why is the legislation needed?
Anti-Semitism is disturbingly pervasive and moving into the mainstream. In recent years, the issue of hostility towards Jewish students and Israel and anti-Semitic incidents on college campuses have attracted considerable national attention.
- As early as 2006, the United States Commission on Civil Rights made this statement in their report, Findings and Recommendations of the United States Commission on Civil Rights Regarding Campus Anti-Semitism:
On many campuses, anti-Israeli or anti-Zionist propaganda has been disseminated that includes traditional anti-Semitic elements, including age-old anti-Jewish stereotypes and defamation. This has included, for example, anti-Israel literature that perpetuates the medieval anti-Semitic blood libel of Jews slaughtering children for ritual purpose, as well as anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial. Such propaganda should be distinguished from legitimate discourse regarding foreign policy. Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism.
- According to the latest (2018) FBI Hate Crime Statistics Act report, 59 percent of religiously-motived hate-crimes were based on the offenders’ anti-Jewish bias, with another 13 percent based on anti-Muslim bias. Of the 835 reported anti-Jewish incidents, at least 86 occurred at college and university campuses. And at least 49 occurred at elementary or secondary school campuses.
- ADL’s Audit of Anti-Semitic Incidents documented a slight decrease in reported incidents at colleges and universities – from 204 incidents in 2017 to 201 incidents in 2018, but still 86 percent higher than the 108 reported incidents in 2016. In fact, campus anti-Semitic incidents accounted for more than 10 percent of the total anti-Semitic incidents reported to ADL in the U.S. in 2018. Of the 201 incidents, 106 were incidents of harassment, 91 were incidents of vandalism, and four, increasing from zero reported in 2017, were incidents of assault.
- The ADL Audit also documented 344 anti-Semitic reported incidents at non-Jewish K-12 schools, a decrease of 25% from 457 incidents reported in 2017, but still 46% higher than the 235 reported in 2016. The incidents accounted for over 18 percent of all anti-Semitic incidents reported for 2018. Of the 344 reported incidents in 2018, 173 were incidents of harassment, 169 were incidents of vandalism, and two were incidents of physical assault.
- A 2016 Brandeis University study states: “On many campuses more than one third of Jewish students feel at least a little uncomfortable expressing their opinions about the Israeli-Palestinian conflict.” This indicates two things:
- There is a connection between Jewish students and the conversations about Israel on campus.
- There is an environment created that is hostile toward Israel, and Jewish students are likely to be affected.
- While most incidents of anti-Semitism on campus are unrelated to anti-Israel activity, the Department of Education and the Department of Justice should have the authority to investigate instances in which anti-Israel activity – including anti-Semitic stereotypes and anti-Israel or anti-Zionism expressions coded as political discourse – cross the line to targeted, intentional, unlawful, discriminatory intimidation and harassment of Jewish students. Enactment of the legislation will help ensure that OCR investigations of future complaints – as well as training and technical assistance for OCR Regional Office professionals – will be informed by a definition of anti-Semitism that includes all current manifestations.
How does the legislation affect First Amendment rights?
In testimony presented to the House Judiciary Committee in November, 2017, ADL outlined our belief that, though hate speech may be protected by the protected by the First Amendment, it has a significant harm and impact that should not be ignored. It distracts from the learning community institutions strive to create, and it increases the perception of division in an already deeply-polarized political climate. The Anti-Semitism Awareness Act provides the Department of Education with a working definition for anti-Semitism in a way that is attentive to the need to protect political speech
In November, 2017, Paul Clement, a former Solicitor General of the United States, testified before the House Judiciary Committee addressing the constitutionality of the Anti-Semitism Awareness Act and its First Amendment protections.
- The act does not criminalize speech; it only allows for protected speech to be looked at when considering whether actions are motivated by hate or bias.
- The Act merely adds a definition to existing law to provide a consistent basis for determining what constitutes anti-Semitism for purposes of Department of Education and university investigations.
- Clarifying anti-Semitism is a unique contribution that this bill will make toward the goals of an inclusive campus climate. The Israeli-Palestinian conflict is a complex issue. In the heat of debates, and with a community of passionate students, sometimes conflict can escalate on campus, and students cross lines of inappropriate behavior, conflating and connecting Jewish students on campus with Israel. Most times, anti-Israel rhetoric and imagery is acceptable, protected political expression, but there are times that anti-Semitism does present in stereotypes and tropes that have been used against Jews throughout history.
- To the extent that Jewish students are targeted, as Jews, and held responsible for the actions of Israel, this is a factor to consider in determining whether these actions constitute unlawful, discriminatory treatment of Jewish students that deprives them of an equal educational opportunity. Importantly, providing the Department of Education with a tool to understand the concept that anti-Israel action on campuses can occasionally manifest in anti-Semitism also provides guidance for those times when accusations of anti-Semitism are misidentified or exaggerated. This training tool will ultimately help keep balance and perspective.