What is antisemitism? It’s easy to think of a colloquial definition — hatred and bigotry directed against Jews — but it’s much harder than you might think to define it legally. It doesn’t fit neatly into existing federal anti-discrimination law.
This legal ambiguity is especially problematic when our nation is facing what President Biden called a “ferocious surge” in antisemitism. This year, the Anti-Defamation League reported a 140 percent increase in antisemitic incidents in 2023 compared with 2022 — and 2022 was already a record year. The crisis on college campuses was particularly acute. According to the ADL, the number of antisemitic incidents on campus tripled in 2023.
Acting with surprising consensus, the House of Representatives has responded. Last week, the Antisemitism Awareness Act, a bill intended to protect Jewish students from discrimination on campus, passed with broad bipartisan support. The law is motivated by good intentions in support of a necessary purpose, but the bill itself is deeply flawed. Those flaws aren’t fatal, but they need to be addressed in the Senate.
To understand what’s good about the act, it’s necessary to understand the legal ambiguities that now exist on campus. “No person in the United States,” Title VI of the Civil Rights Act of 1964 states, “shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” There is no corresponding federal prohibition on discrimination on the basis of religion.
The problem is immediately obvious. Jewishness doesn’t fit neatly into any of those three categories. Israelis of all races, religions and ethnicities are protected because of their national origin, but what about American Jews? Judaism is a religion, and religion isn’t covered. Jewishness is more of an ancestry than a “race” or a “color” — there are Jews of many races and colors.
Both the Trump and the Biden administrations attempted to solve the problem by interpreting Title VI to apply to antisemitism, at least in some circumstances. The Trump administration issued an executive order stating that “discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color or national origin.” Biden’s Department of Education has interpreted Title VI to apply when students “experience discrimination, including harassment,” on the basis of their “shared ancestry or ethnic characteristics.”
But these statements — even if fairly rooted in the text of Title VI — are not a solution. Executive orders and administrative regulations are more ephemeral than federal statutes. The next president (or one elected in 2036 or 2052) may choose to interpret Title VI differently. Biden’s interpretation is broader than Trump’s, for example. Courts will also have their own say, and they are now less deferential to presidential interpretations of the law than they’ve been in decades.
There is an answer to the problem. Congress should pass legislation clearly stating that antisemitism is included in the scope of Title VI. This change would remove discretion from presidents and clarify the law for the courts. It would provide bedrock legal protection for Jewish students across the United States.
The best parts of the Antisemitism Awareness Act explicitly incorporate discrimination based on “actual or perceived shared ancestry or ethnic characteristics” into federal statutory law, elevating the legal protections well beyond the executive orders and guidance letters of previous administrations. If the law had stopped there — or even if it had gone further and explicitly stated that discrimination on the basis of actual or perceived Jewish identity is by definition discrimination on the basis of shared ancestry, then it would be a vital addition to federal law.
But the law did not stop there. It goes on to require schools to consider the International Holocaust Remembrance Alliance’s working definition of antisemitism when determining whether there has been a violation of Title VI. This is a serious mistake. The alliance’s definition includes examples of antisemitism that encompass a broad range of statements that are protected by the First Amendment.
For example, it is wrong and immoral to denounce the state of Israel as a “racist endeavor,” but that is constitutionally protected speech. So is the ancient Christian libel that Jews are collectively responsible for killing Jesus. So is the claim that the state of Israel is comparable to Nazis. And so is the assertion that Jews are more loyal to Israel than their home countries. Those statements are all examples of antisemitism in the alliance’s definition — and I believe they are actually antisemitic — but if public colleges and universities punish students simply for engaging in such expression, then they’ll violate the First Amendment.
The definitions don’t just implicate the First Amendment, they also breed confusion around the very concept of harassment itself. Hearing unpleasant or even hateful thoughts or ideas isn’t “harassment.” That’s an inescapable part of life in a free, pluralistic nation. Harassment is something else entirely.
In a 1999 case, Davis v. Monroe County Board of Education, the Supreme Court defined student-on-student harassment under Title IX (the federal statute prohibiting sex discrimination in federally funded education) as conduct “so severe, pervasive and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.”
Harassment doesn’t depend so much on the content or viewpoint of the objectionable speech as where, when and how it happens. If students chant, “Globalize the intifada,” at a lawful public protest, then that’s protected. If they shout down Jewish students in class using the same phrase, or chant it outside the dorm rooms of Jewish students at 3 a.m., then they’re engaging in harassment. Jewish students can’t study or sleep on an equal basis with other students.
In both of those circumstances, the actual content of the words is less important than the timing and the targets. A person can commit an act of antisemitic harassment if he targets Jewish students with words that have nothing to do with ancestry or ethnicity. For example, if someone stands outside a Jewish student’s room night after night yelling, “Michael Jordan is the GOAT” relentlessly so that the student can’t sleep or targets her Jewish roommate with constant interruption and distraction then she’s engaging in antisemitic harassment not because of the content or viewpoint of the words, but rather because of the identity of the target and the time and manner of the speech.
In that sense, the Antisemitism Awareness Act is both overinclusive and underinclusive. By sweeping constitutionally protected speech into the statute, it can cause schools to unlawfully suppress speech. By incorporating the alliance’s explicit lists of “examples” of antisemitism, it can cause schools to ignore other forms of harassment.
And that brings us back to the ugliness of the moment. The instant that the House passed the bill, social media lit up with objections. Principled civil libertarians on the right and left raised the same objection that I am raising now — the act can suppress free speech. But the far right went much further and used the passage of the act as an opportunity to spew its antisemitism all over the internet.
Representative Matthew Gaetz, for example, posted that “the Gospel itself would meet the definition of antisemitism under the terms of this bill!” Representative Marjorie Taylor Greene said the bill “could convict Christians of antisemitism for believing the Gospel that says Jesus was handed over to Herod to be crucified by the Jews.”
Charlie Kirk, the founder of Turning Point USA, asked on X, “Did the House of Representatives just make parts of the Bible illegal?” Tucker Carlson responded, “Yes, the New Testament.”
These complaints are absurd. The Romans crucified Jesus, and while in the biblical account there were certainly Jews who wanted to crucify Jesus, Jesus was a Jew and so were his early disciples. The idea that “the Jews” writ large bear enduring responsibility for Christ’s death isn’t “the Gospel.” It’s blood libel.
The MAGA reaction was particularly nonsensical given that the Trump administration used the International Holocaust Remembrance Alliance definition of antisemitism in its own executive order, and the text of the Antisemitism Awareness Act reflects much of that same language. The Gospel wasn’t outlawed under Trump, and it’s not outlawed by the bill, either.
My heart breaks for my Jewish friends and fellow citizens. Many millions feel under siege regardless of their stance on the war. The pain of the worst massacre of Jews since the Holocaust has been magnified by a wave of antisemitism at home aimed at people who have nothing at all to do with the military policies of the Israeli government. And now even federal efforts to combat antisemitism are triggering waves of fresh abuse.
The ball is now in the Senate’s court, and the Senate majority leader, Chuck Schumer, has noted that there are “objections on both sides” to the legislation. But he appears open to compromise. “We’re going to look for the best way to move forward,” he said.
If I may, I’d like to humbly offer a better way. Strip the problematic incorporation of the alliance’s antisemitism definition and examples from the bill entirely. Instead, simply amend Title VI itself to make it explicit that discrimination based on “actual or perceived shared ancestry or ethnic characteristics” is prohibited by the statute and that antisemitic discrimination meets that definition.
And that’s it. That should be the whole bill. There is no need for examples or definitions of antisemitism because these definitions both threaten free speech and don’t come close to capturing all the myriad ways in which antisemites can and do discriminate against Jews on campus. By revising Title VI, you protect Jewish students from the evolving priorities of future administrations, and you make it plain that American law gives no purchase to antisemitic harassment.
Crucially, by revising Title VI to clearly prohibit discrimination against Jews without any further amplification or definition, antisemitic harassment will fit neatly into existing case law that has longed harmonized free speech principles and nondiscrimination law. The First Amendment has existed side by side on public campuses with Title VI for generations, and we largely know the proper distinctions between free speech and discriminatory harassment.
American Jewish students need robust legal protection from discrimination and harassment. Those protections should be no more and no less than the protections we provide Black students, white students and students from any other race or nationality. The Antisemitism Awareness Act goes too far, but it’s easily fixed. And it must be fixed to fully protect American Jews from the vile hatred that is spreading across our land.
Some other stuff I did
My Sunday column was about the lessons learned from the clash between Mike Johnson and Marjorie Taylor Greene over Ukraine aid and her threats to oust Johnson from the speaker’s chair. Johnson is clearly winning — at least so long as Trump stays on the sidelines — and this holds lessons for the staying power of MAGA after Trump leaves the scene:
The scandals and conspiracies that don’t seem to touch Trump at all can still bring down other Republicans, including the MAGA candidates who hug Trump the hardest. It turns out that the vaunted ideological change of the Republican Party from Reaganite conservatism to America First and working-class populism may well be overblown.
This makes the 2024 election all the more crucial. If Trump wins, MAGA has four more years to consolidate its hold on the Republican Party and transform the conservative movement from the inside out. But if Trump loses, the battle is joined once again.
I don’t want to bore you with all my podcast and media appearances, but I’ll highlight two. On Tuesday I spoke to PBS’s Lisa Desjardins about the proper response to campus protests. It’s a short conversation, but we went as deep as we could on the distinctions between free speech, civil disobedience, and outright lawlessness and rebellion.
For something completely different, I spoke to a very sharp college student named Andrew Xu about masculinity, gender roles and the role that religious institutions can play in cultivating character. It’s difficult to find the right solutions for the plight of millions of young men, but it’s imperative that we try.