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ACLU Slams Senate Push to Crack Down on Campus Criticism of Israel
"The ability to criticize governments and their policies is a critical component of our democracy."
Nov 14, 2024
The ACLU on Thursday sent a letter to U.S. senators arguing that bipartisan legislation which backers claim would combat antisemitism on university campuses would actually be an affront to free speech protections and censor legitimate criticism of the Israeli government as it carries out atrocities in Gaza, the occupied West Bank, and Lebanon.
The group's letter comes two weeks after Axiosreported that Senate Majority Leader Chuck Schumer (D-N.Y.) "recently promised Jewish leaders that he would try later this year to pass" the House-approved Antisemitism Awareness Act, or S. 4127.
"Instead of addressing antisemitism on campus, this misguided legislation would punish protected political speech," said ACLU senior policy counsel Jenna Leventoff, who signed the letter with Christopher Anders, director of democracy and technology.
"At a time when civil rights enforcement on campus could not be more critical, this bill risks politicizing these vital protections by censoring legitimate political speech that criticizes the Israeli government," Leventoff warned. "The right to criticize government actions is the most fundamental protection provided by the First Amendment—and this includes the actions of foreign governments. The Senate must continue to block this bill and protect free speech."
"It would likely chill free speech of students on college campuses by incorrectly equating criticism of the Israeli government with antisemitism."
The letter highlights that "federal law already prohibits antisemitic discrimination and harassment by federally funded entities. S. 4127 is therefore not needed to protect against antisemitic discrimination; instead, it would likely chill free speech of students on college campuses by incorrectly equating criticism of the Israeli government with antisemitism."
As Israeli forces—armed by the Biden administration and U.S. Congress—have bombed and starved Palestinians in Gaza over the past 13 months, students colleges and universities across the United States have held protests urging their education institutions and government to divest from the assault, which is the subject of a genocide case at the International Court of Justice.
Some campus administrations—under pressure from Zionists in Congress—have called in law enforcement to violently crack down on protesters and enacted new policies intended to limit anti-genocide demonstrations by students and faculty.
"The ACLU does not take a position on the conflict between Israel and Palestine, but it does staunchly defend the right of those in the United States to speak out on domestic and international political matters," the organization emphasized. "The ability to criticize governments and their policies is a critical component of our democracy."
As the letter explains:
This bill directs the Department of Education to take the International Holocaust Remembrance Alliance's (IHRA) working definition of "antisemitism" into consideration when determining whether alleged harassment was motivated by antisemitic intent and violates Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination on the basis of race, color, or national origin in programs receiving federal financial assistance, including in higher education. The federal government itself has interpreted Title VI to prohibit harassment or discrimination against Jews, Hindus, Muslims, and Sikhs as well as others when that discrimination is based on the group's actual or perceived shared ancestry or ethnic characteristics. These existing protections are critically important, particularly in the current environment.
The IHRA working definition, however, is overbroad. It equates protected political speech with unprotected discrimination. Enshrining this definition into regulation would chill the exercise of First Amendment rights and risk undermining the Department of Education’s legitimate and important efforts to combat discrimination. Criticism of Israel and its policies is political speech, squarely protected by the First Amendment.
"The IHRA definition of antisemitism is also unconstitutional," the letter continues, citing a case about Republican Texas Gov. Greg Abbott's executive order directing the state's higher education institutions to craft policies based on the controversial language.
The letter points out that even "the lead author of the original IHRA definition, Kenneth Stern, has himself opposed the application of this definition to campus speech, noting that codifying this definition would lead campus administrators to 'fear lawsuits when outside groups complain about anti-Israel expression, and the university doesn't punish, stop, or denounce it.'"
The ACLU specifically warned that "S. 4127 could result in colleges and universities suppressing a wide variety of speech critical of Israel or in support of Palestinian rights in an effort to avoid investigations by the department and the potential loss of funding, even where such speech is protected and does not qualify as harassment."
"Even where administrators do not take formal action, students and their organizations, faculty, and university staff may be deterred from speaking and organizing on these issues," the group added. The bill would also "likely inspire an increasing number of complaints focused on constitutionally protected criticism of Israel," taking time away from "meritorious" filings.
The Senate majority leader has faced intense pressure to bring the bill to a vote as this session of Congress winds down. Axios noted that Florence Avenue Initiative, a nonprofit that doesn't have to disclose its donors, "has spent about $5 million on an ad campaign blasting Schumer, the highest-ranking Jewish lawmaker, for his inaction."
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Jewish Groups Decry House Passage of Bill Defining Criticism of Israel as 'Antisemitism'
"Antisemitism is a serious problem, but codifying a legal definition could have dangerous implications for free speech," said one campaigner.
May 01, 2024
House lawmakers voted overwhelmingly Wednesday to approve legislation directing the U.S. Department of Education to consider a dubious definition of antisemitism, despite warnings from Jewish-led groups that the measure speciously conflates legitimate criticism of the Israeli government with bigotry against Jewish people.
House members approved the
Antisemitism Awareness Act—bipartisan legislation introduced last year by Reps. Mike Lawler (R-N.Y.), Josh Gottheimer (D-N.J.), Max Miller (R-Ohio), and Jared Moskowitz (D-Fla.) in the lower chamber and Sen. Tim Scott (R-S.C.) in the Senate—by a vote of 320-91.
Both progressive Democrats and far-right Republicans opposed language in the bill. The former objected to conflating criticism of Israel with hatred of Jews, while the latter bristled at labeling Christian scripture—which posits that Jews killed Jesus—as antisemitic.
"Antisemitism is the hatred of Jews. Unfortunately, one doesn't need to look far to find it these days. But the supporters of this bill are looking in the wrong places," Hadar Susskind, president and CEO of the Jewish-led group Americans for Peace Now, said following Wednesday's vote.
"They aren't interested in protecting Jews," he added. "They are interested in supporting right-wing views and narratives on Israel and shutting down legitimate questions and criticisms by crying 'antisemite' at everyone, including Jews" who oppose Israel's far-right government.
"With this disingenuous effort, House Republicans have failed to seriously address antisemitism," Susskind added. "I hope the Senate does better."
The legislation—officially H.R. 6090—would require the Department of Education to consider the International Holocaust Remembrance Alliance (IHRA) Working Definition of Antisemitism when determining whether alleged harassment is motivated by antisemitic animus and violates Title VI of the Civil Rights Act of 1964, which "prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance," including colleges and universities.
Lawler's office called the proposal "a key step in calling out antisemitism where it is and ensuring antisemitic hate crimes on college campuses are properly investigated and prosecuted," while Gottheimer emphasized that "the IHRA definition underscores that antisemitism includes denying Jewish self-determination to their ancestral homeland of Israel... and applying double standards to Israel."
Critics say that's the trouble with the IHRA working definition: It conflates legitimate criticism and condemnation of Israeli policies and practices with anti-Jewish bigotry, and forces people to accept the legitimacy of a settler-colonial apartheid state engaged in illegal occupation and a "plausibly" genocidal war on Gaza.
As the ACLU noted last week in a letter urging lawmakers to reject the legislation:
The IHRA working definition... is overbroad. It equates protected political speech with unprotected discrimination, and enshrining it into regulation would chill the exercise of First Amendment rights and risk undermining the Department of Education's legitimate and important efforts to combat discrimination. Criticism of Israel and its policies is political speech, squarely protected by the First Amendment. But the IHRA working definition declares that "denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a state of Israel is a racist endeavor," "drawing comparisons of contemporary Israeli policy to that of the Nazis," and "applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation" are all examples of antisemitism.
Jewish Voice for Peace Action
slammed what it called IHRA's "controversial and dangerous mis-definition that does not help fight real antisemitism and is only a tool for silencing the movement for Palestinian rights."
"The Israeli government's bombardment and siege of Gaza has killed over 34,000 people in six months," the group said on social media. "Congress must stop attacking the students and faculty members who are trying to stop this genocide, and instead focus on ending U.S. complicity in Israel's attacks."
Israel's Gaza onslaught has sparked a wave of nonviolent student-led protests across the United States and around the world. Some of these protests have been violently repressed by police, while anti-genocide activists including Jews have been branded "antisemitic" for condemning Israeli crimes or defending Palestinians' legal right to resist them.
Sending in militarized police and snipers to stop students from exercising their First Amendment rights is truly disgusting.
Why are my colleagues and the mainstream media more outraged over these anti-war protests than they are about the over 35,000 Palestinians killed in Gaza? pic.twitter.com/EwLqRrS2we
— Congresswoman Rashida Tlaib (@RepRashida) May 1, 2024
Americans for Peace Now said that while it is "deeply concerned about the escalating antisemitism in the United States and globally," the legislation "poses a significant threat to free speech and open discourse."
"Equating criticism of the Israeli government with antisemitism is a tactic used to stifle important discussions on Israeli policies and actions, thereby hindering the broader effort to combat true instances of hatred and discrimination against Jewish communities," the group added.
Kenneth Stern, director of the Bard Centre for the Study of Hate and lead drafter of the IHRA working definition, warned years ago that "Jewish groups have used the definition as a weapon to say anti-Zionist expressions are inherently antisemitic and must be suppressed."
"Imagine if Black Lives Matter said the most important thing the [Biden] administration could do to remedy systemic racism is adopt a definition of racism, and that definition included this example: opposition to affirmative action," Stern wrote in 2020.
"Obviously, sometimes opposition to affirmative action is racist and sometimes it is not," he added. "The debate about systemic racism would be changed to a free speech fight, and those with reasonable concerns about affirmative action correctly upset that the state was branding them racist."
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Legal Bullying Aims to Silence Campus Critics of Israel
Title VI was designed to end discrimination and harassment on campus, but the law can also be misused, as partisans of Israel have done, to protect Israel from criticism and stifle pro-Palestinian voices.
Jan 23, 2024
A sad fact of jurisprudence in an unequal world is that good laws created to promote justice are often used perversely by the powerful to thwart justice. Title VI of the 1964 Civil Rights Act is a prime example. Originally intended to combat discrimination based on race, color, or national origin, the law is misused today to quash pro-Palestinian speech and speech critical of Israel on university campuses.
Protection from discrimination under Title VI extends to individuals and groups defined by shared ancestry, or by citizenship or residency in a country with a dominant religion or distinct religious identity. On university campuses, responsibility for enforcement of Title VI, except for complaints citing discrimination based on religion, falls to the Office of Civil Rights (OCR) of the Department of Education.
Under the law, complaints are warranted when students in a protected category experience severe, pervasive, and persistent harassment that creates a hostile environment that impedes their ability to learn. Examples of what the OCR considers harassment include the use of ethnic slurs, mocking of foreign accents, speech, or names, and acts of physical intimidation linked to ethnic stereotypes.
If an OCR investigation finds that a university has failed to prevent systematic discrimination or allowed severe, pervasive, and persistent harassment to flourish, the university can lose federal funding. Which means that Title VI has teeth; it can help ensure that all students have a fair opportunity to learn. This is the justice-seeking goal of the law.
Unfortunately, Title VI has also been weaponized to silence speech that supports Palestinian rights or criticizes Israel. This has been going on for at least twenty years, and is happening now more than ever. Since October 7, 2023, the Education Department’s OCR has received 33 complaints alleging discrimination based on shared ancestry involving a college or university, according to Inside Higher Ed. Many, though not all, of these complaints have come from partisans of Israel.
These complaints typically cite instances of pro-Palestinian speech or speech critical of Israel as “creating a hostile environment for Jewish students,” and therefore as violations of Title VI. Examples of incidents cited in complaints include accusing Israel of practicing apartheid, advocating for boycott, divestment, and sanctions against Israel, showing the film “Israelism,” hosting speakers who criticize Israeli state policies, protesting speakers who represent the Israeli government, students chanting pro-Palestinian slogans at rallies, and offhand classroom remarks by professors critical of Israel.
Students should never suffer discrimination or harassment based on their race, ethnicity, or national origin. That’s the problem Title VI was meant to address. For this purpose, it remains a valuable tool.
An important thing to know about these complaints is that, after full investigation, they are consistently dismissed.
The principal reason for dismissal is that the incidents cited as “harassment” are in fact obvious instances of permissible free speech. As the presiding judge wrote in a decision resolving a 2011 case at UC-Berkeley, “A very substantial portion of the conduct to which [the complainants] object represents pure political speech and expressive conduct, in a public setting, regarding matters of public concern, which is entitled to special protection under the First Amendment.”
In 2021, the OCR strongly asserted that Title VI enforcement shall not “diminish or infringe upon any right protected under Federal law or under the First Amendment.” And to its credit, the OCR has generally abided by this principle over the years, ultimately rejecting complaints that target free speech. But these failures haven’t stopped partisans of Israel from continuing to file suits under Title VI. They carry on because prompting an investigation is consequential.
University administrators understandably want to avoid the reputational damage that can come from being subject to a civil rights investigation, and so they will often accept resolution agreements that admit no fault but make promises to do better at responding to any campus occurrences that could be construed as antisemitic, anti-Israel, or as making Jewish students feel unsafe.
In the shadow of these agreements, administrators often begin to aggressively monitor campus activities that might draw further negative attention. Administrators may then also look for ways to mute the speech—meaning pro-Palestinian speech or speech critical of Israel—that they see as causing the trouble. Common tactics of suppression include requiring “balance” when pro-Palestinian speakers are brought to campus, insisting that organizers of pro-Palestinian events pay prohibitively high fees for security, and, in extreme cases, suspending pro-Palestinian student groups, making it impossible for them to hold events on campus.
The threat of reputational damage can likewise affect other members of a campus community. Students, faculty, and staff may be deterred from speaking out in support of Palestinian rights, criticizing Israel, or joining groups that support Palestinian liberation, for fear of being labeled antisemitic, accused of discrimination, or involved in a civil rights suit. So even without repressive administrative action, free speech and association in support of Palestinian rights can be chilled.
We don’t need to guess about the motives of pro-Israel bullies. Proponents of the complaint-filing strategy can be surprisingly unabashed about what they’re up to. For instance, Kenneth Marcus, founder and current leader of the Louis D. Brandeis Center for Human Rights Under Law, explained how the strategy is supposed to work.
“These [Title VI cases],” Marcus wrote in a 2013 op-ed in The Jerusalem Post, “even when rejected expose administrators to bad publicity. ... [I]t hurts them with donors, faculty, political leaders and prospective students.” Students, too, are a target, Marcus admitted. “We are creating a very strong disincentive for outrageous behavior by students. ... Needless to say, getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.” Could the intent to suppress speech be any clearer?
As noted, the strategy of misusing Title VI to chill speech critical of Israel is being pursued with new vigor. In the current political climate, this is hard for the Department of Education to resist. But resist it should, as Palestinian rights organizations have long urged, or else free speech in the university stands to be greatly harmed. A case now pending at UNC-Chapel Hill suggests how expedited disposition of politically motivated Title VI complaints could help to prevent this harm.
The complaint against UNC was filed in December, 2023, after a New York-based attorney, David E. Weisberg, learned of two incidents on the North Carolina campus. In one incident, a pro-Palestinian speaker on a seven-person panel titled, “No Peace Without Justice: A Round-Table Talk on Social Justice in Palestine,” praised the ingenuity displayed by Hamas fighters on October 7 and refused to apologize for the violence used to break out of what she called, referring to Gaza, a “concentration camp.”
The other incident allegedly occurred in October, 2023, in a class on rhetoric and public issues. According to the complaint, the professor remarked on one occasion that Israel and the United States “do not give a shit about international law or war crimes.” Later, amidst Israel’s assault on Gaza, the professor reportedly described Israel as “a clearly fascist state committing genocide under the guise of it supposedly being the only democracy in the Middle East.”
No doubt these blunt remarks might unsettle students who embrace the glowing image of itself that Israel tries to project to the world. But having one’s beliefs challenged is part of what higher education ought to entail. And remarks critical of a state, remarks protected by principles of free speech and academic freedom, cannot fairly be seen as actionable harassment under Title VI.
Weisberg, the complainant, invoked the contentiously broad definition of antisemitism advanced by the International Holocaust Remembrance Alliance (IHRA) to label these incidents antisemitic, further alleging that the incidents created a hostile educational environment for students of Jewish descent who “entertain positive feelings toward the modern State of Israel.” The Department of Education’s OCR agreed to investigate.
Even though the OCR expressly states that agreeing to investigate a complaint is not a judgment of a complaint’s merits, doing so nonetheless appears sufficiently validating to give a legal bully a partial victory. In the UNC case, the incidents cited in the complaint are protected expressive speech, and by no means amount to severe, pervasive, and persistent harassment. As with similar complaints that have been filed over the years, this one will be investigated and almost certainly dismissed.
No doubt these blunt remarks might unsettle students who embrace the glowing image of itself that Israel tries to project to the world. But having one’s beliefs challenged is part of what higher education ought to entail.
For now, though, the university must deal with the investigation, and administrators will feel pressure to resolve the complaint, perhaps agreeing—as on a previous occasion—to be more alert and responsive to anything on campus construable as antisemitic, no matter how far-fetched such a construal might be. Campus supporters of Palestinian rights will also be subject to closer scrutiny as the investigation proceeds, and perhaps find it harder to hold events and draw an audience. The goal of the bullying strategy will thus be achieved. Other campuses where investigations are underway will be similarly affected.
An expedited process for handling Title VI complaints of this kind is long overdue. Instead of accepting new complaints that mirror the bogus complaints that have been rejected again and again—complaints that point to nothing but clear instances of free speech and offer no credible evidence of harassment or discrimination—the OCR should quickly review and summarily reject these frivolous complaints as attacks on free speech that impede everyone’s ability to learn.
Real discrimination is of course intolerable and calls for corrective action. Students should never suffer discrimination or harassment based on their race, ethnicity, or national origin. That’s the problem Title VI was meant to address. For this purpose, it remains a valuable tool.
But the law can also be misused, as partisans of Israel have done, to protect Israel from criticism and stifle pro-Palestinian voices. This isn’t ultimately about the safety of Jewish students, many of whom are already critical of Israel and Zionism. It is, rather, about keeping the ideologies that sustain oppressive social arrangements safe from the corrosive effects of critical education. To keep this liberatory possibility alive, we should resist threats to free speech, and be especially wary when they are disguised as efforts to fight discrimination.
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