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Op-Ed

The Anti-Semitism Awareness Act would damage free speech rights on campus

Since Donald Trump’s election, a wave of hate attacks have targeted Jews, Muslims and other vulnerable groups.

What’s the government doing about it? Nothing.

But the U.S. Senate did pass a bill last week called the Anti-Semitism Awareness Act, which cracks down on the constitutional rights of college students and faculty to criticize Israel. The House will vote on it any day now.

The Anti-Semitism Awareness Act endorses the State Department definition of anti-Semitism, which includes “delegitimizing” Israel, “demonizing” Israel or holding Israel to a “double standard.” The bill directs the Department of Education to consider this definition when investigating complaints of anti-Semitism on campus. But the bill does not add any new protections for Jewish students; the Civil Rights Act of 1964, and the Department of Education’s interpretation of the statute, already protects Jewish students against discrimination.

The State Department standard is highly controversial because it conflates criticism of Israeli policies with anti-Jewish hatred, shutting down debate by suggesting that anyone who looks critically at Israeli policy is somehow beyond the pale. It has no place on college campuses in particular, where we need students to engage in a vigorous exchange of ideas — especially around our world’s most intractable problems, such as Israel's nearly 50-year military occupation of Palestine.

The University of California rejected the same definition in 2015 after an outcry from free-speech advocates across the political spectrum, newspapers, students, graduate student instructors, and Jewish and other civil rights organizations. Jewish commentators, including the definition’s original drafter, Kenneth Stern, repudiated its use on college campuses.

As a Jewish student at Berkeley Law in 2010, I joined the campaign pushing the university to divest from companies complicit in Israel’s occupation and violations of Palestinian rights. I was shocked when Israel advocacy organizations claimed that our support for Palestinian equality was so distressing for some Jewish students that the university should not even let us debate the issue.

This was not just a political strategy; it was a legal strategy to justify censorship.

One year later, pro-Israel organizations sued UC Berkeley, alleging that Palestine advocacy on campus created a hostile environment for Jewish students. The case was soundly rejected by a federal court and by the Department of Education. The department also rejected similar cases against UC Irvine, UC Santa Cruz and Rutgers University because the activities alleged to be anti-Jewish — mock Israeli military checkpoints and divestment campaigns — were, in the department’s words, actually “robust and discordant” expressions on matters of public concern.

The Senate bill instructs the Education Department to change the rules so that disparagement of Israeli policy is officially understood as anti-Jewish, and thus fair game for federal investigation and punishment.

If Israel advocacy organizations report, say, a divestment protest, federal investigators may come to campus to investigate, causing a severe chilling effect. And if investigators determine that the university in question tolerates an anti-Semitic environment, they may revoke federal funding.

This sets up a blatant violation of student and faculty members’ 1st Amendment rights. As Trump might have learned last week when he called for jailing flag burners, the right to criticize a government — the U.S., Israeli or any other government — is enshrined in the Constitution. Congress can’t legislate that away.

Widespread censorship on Palestine is not hypothetical; it’s already happening. This fall, Berkeley suspended an academic course called “Palestine: a Settler Colonial Inquiry” after complaints from the same Israel advocacy organizations who had previously tried to get the Education Department to stifle campus debate. This is how the chilling effect plays out. Campus administrators understand the specter of federal investigations — not just the threat of losing funding, but the fallout from bad headlines — and they suppress legitimate speech to avoid problems.

The Anti-Semitism Awareness Act flew through the U.S. Senate “by unanimous consent,” with zero debate and no public scrutiny because the text of the bill was not published. No doubt, that’s because lawmakers want to prevent vocal debate on Palestinian equality at all costs.

But the bill shouldn’t just concern those who take an interest in Palestinian freedom. Anyone who values the constitutional right to express political dissent should worry about this development and speak out before the House gets around to rubber-stamping the Senate’s unanimous decision.

Liz Jackson is a staff attorney for Palestine Legal in Oakland.

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