In response to the rise of pro-Palestinian activism on college campuses, some supporters of Israel have argued that harsh criticism of the Jewish state amounts to anti-Semitism — and even that it violates federal anti-discrimination law. Now the Trump administration, in reopening a 7-year-old case involving alleged anti-Semitism at Rutgers University, seems to have embraced that popular but dangerous view.
It’s dangerous because colleges and universities should be open to robust political discussion, even if offends the deepest beliefs of students. That’s true for public and private universities alike — and public universities are additionally bound by the 1st Amendment. The regents of the University of California realized that in 2016, and that’s why they rebuffed demands that UC declare that “anti-Zionism” was a form of discrimination.
The U.S. Department of Education, however, has now signaled that it is willing to blur the distinction between criticism of Israel and discrimination against Jewish students.
In a letter to the Zionist Organization of America, which long has campaigned against what it claims is anti-Jewish bias on college campuses, Assistant Secretary for Civil Rights Kenneth Marcus said that the department would revisit an old allegation that Jewish students at Rutgers, the state university of New Jersey, were charged a $5 fee to attend a pro-Palestinian event in 2011 but that others were allowed to attend without charge.
The allegation was one of several complaints about alleged discrimination against Jews at Rutgers that the Obama administration dismissed in 2014. Under Title VI of the Civil Rights Act, federally aided colleges and universities — virtually all of them — may not discriminate on the basis of race, color, or national origin. (The law has been interpreted to protect groups, such as Jews and Muslims, that are also identified by religion.)
Less significant than the new investigation of the specific facts in the Rutgers case is the fact that Marcus indicated that the Trump administration has decided to embrace a broad interpretation of anti-Semitism contained in statements by the State Department and the International Holocaust Remembrance Alliance.
Both statements define as anti-Semitic criticisms of Israel that call into question its legitimacy. The 2010 State Department definition cites as an example of anti-Semitism “denying the Jewish people their right to self-determination, and denying Israel the right to exist.” The IHRA definition, which the State Department has endorsed, is more specific, targeting statements “claiming that the existence of a State of Israel is a racist endeavor.”
Both definitions also condemn criticism that subjects Israel to a double standard by “requiring of it behavior not demanded of any other democratic nation.” That formulation could brand as an anti-Semite someone who, say, criticized Israel’s treatment of the Palestinians but didn’t assail the U.S. or Britain for violating the rights of minorities.
The Trump administration isn’t alone in seeking to inject the State Department definition into determinations about whether a college is discriminating against Jewish students. That would also be the effect of a bill in Congress called the Anti-Semitism Awareness Act of 2018.
But the two definitions are based on false assumptions. While it’s no doubt true that some critics of Israel — and of the political philosophy of Zionism — also harbor hatred of Jews, it does not follow from that that all anti-Zionists are anti-Semites. Opposing Israel’s right to exist or disagreeing with the policies of the Netanyahu government are positions that may be held by many people for many reasons, including people who are not anti-Semitic.
Moreover, even statements that are anti-Semitic are protected by the 1st Amendment, so long as they don’t take the form of threats or face-to-face harassment. That’s the price we pay to live in a country that zealously protects free speech.
Granted, college campuses are also places in which students shouldn’t have to contend with a “hostile learning environment.” A student can’t learn if he or she is subjected to acts of bigotry, subjected to racial or religious epithets or treated differently because of race or religion. The federal government must investigate complaints that colleges allow such misconduct.
But students cannot and should not be hermetically sealed off from speech that offends them. Undoubtedly many Jewish students are made uncomfortable by fellow students or visiting speakers who denounce or demonize Israel, just as Catholic students might be dismayed by a speaker who impugned the teachings of Christianity or lampooned the pope.