How to Define Prejudice

College campuses nationwide have seen an escalating number of anti-Semitic incidents over the past several years, but academics, experts and politicians remain divided on how to combat them.

At a hearing of the House of Representatives Judiciary Committee Tuesday, some panelists depicted the Education Department as floundering without a definition with which to consider cases of harassment toward Jewish students.

While the Education Department is charged with examining claims of harassment under Title VI of the 1964 Civil Rights Act, it lacks any formal description of anti-Semitism, which can complicate an investigation, panelists said.

Conversation Tuesday largely centered on a bill, first introduced last year, to change that.

The Anti-Semitism Awareness Act would instruct the Education Department to rely on the State Department’s definition of anti-Semitism. The proposal generated bitter debate, with some of its opponents claiming it would chill free speech at universities. In part, this is because the State Department’s definition includes demonizing Israel as an example of anti-Semitism, and opponents felt that this would suppress opposition to the actions of the Israeli state among both students and professors.

The bill passed the Senate but not the House last year.

At least two panelists floated the idea that faculty members who teach lessons critical of Israel could be construed to be spouting hate speech, for instance.

But advocacy group representatives on the panel, such as those from the Anti-Defamation League, characterized the troubles for Jewish students as reaching a disaster level, and they implored lawmakers to step in.

“We need your help,” said Rabbi Abraham Cooper, associate dean of the Simon Wiesenthal Center.

Generally, there has been a jump in anti-Semitism nationwide this year. The Anti-Defamation League, which tracks such bigotry across the country, has documented almost 1,300 anti-Semitic incidents from January through the end of September. The group did not specify the number that occurred on college campuses.

But anecdotally, anti-Semitism has intruded on college campuses more frequently over the past year.

Perhaps most prominent was a white supremacist rally on the University of Virginia campus in August, where members of various white nationalist and neo-Nazi groups circled the campus wielding torches and chanting, “Jews will not replace us.”

During the hearing, Representative Sheila Jackson Lee, a Texas Democrat, played a clip of the march on her phone from the dais, to illustrate her “horror” at these types of incidents and the need for a fix. She said she could only imagine how the students on the campus that night felt looking at the spectacle.

And on the other side of the country, at San Francisco State University, Jewish students sued in June, alleging that the institution and the Board of Trustees who oversee the California State University system left them vulnerable and perpetuated anti-Semitism.

Jewish students said San Francisco State administrators never intervened when students were harassed and bullied and that they felt fearful, to the point they wouldn’t wear symbols that identified their religious affiliation and avoided certain campus routes.

The federal lawsuit was referenced during the hearing by Sandra Hagee Parker, chairwoman of the Christians United for Israel Action Fund. She cited incidents at other institutions -- rocks being hurled at Jewish students at the University of New Mexico, a George Mason University student wearing a pro-Israel shirt being called “a baby killer” in the middle of the cafeteria.

“Sadly, history has already clearly shown us what happens when good men and women do nothing in the face of such evil. Not to act is to act,” Parker said.

Professors on the panel, among others, said the portrayals of campuses in crisis were false, and that the legislation would contradict free speech principles on campus.

Suzanne Nossel of PEN America called the definition overly broad and inappropriate for a college campus. She said any policy that treated criticism of Israel as anti-Semitic was a mistake.

“It is undeniable that some anti-Israel sentiment is fueled by hostility toward Jews. But to declare, ipso facto, that any speech that blames Israel for regional tensions or subjects Israel to a higher standard of behavior constitutes anti-Semitism risks chilling a wide range of speech,” she said in her testimony.

To counter, some on the panel said that the State Department definition had been adapted from one used worldwide, specifically by an agency of the European Union.

If passed, the legislation could lead other minority groups, such as black or lesbian, gay, bisexual and transgender men and women, to demand similar flawed blanket protections, Nossel said.

Paul Clement, solicitor general under President George W. Bush, now a partner at Kirkland & Ellis, said that the bill wouldn’t run afoul of First Amendment principles. Simple criticisms of Israel wouldn’t rise to the harassment level, he said, but the legislation would give the Education Department rules with which to investigate discrimination against Jews, and use the speech as evidence in such a case.

A definition could be developed by adjudicating these types of cases, but the Education Department has not opened any Title VI cases related to anti-Semitism, panelists said -- so Congress should intervene, according to Clement.

President Trump’s pick to lead the Office for Civil Rights, Kenneth Marcus, who also worked for the George W. Bush administration, has vehemently advocated for the legislation.

Marcus leads the Louis D. Brandeis Center for Human Rights Under Law, a Jewish advocacy group. He has been particularly critical of the anti-Israeli movement known as boycott, divestment and sanctions, or BDS.

In a Politico column, Marcus called the Office for Civil Rights “powerless” in handling cases related to anti-Semitism.

“The 115th Congress should take action on this legislation immediately and give the new secretary of education the tools necessary to stamp out this ugly blight of campus anti-Semitism,” he wrote in January.