After Donald Trump’s election emboldened white supremacists and inspired a wave of anti-Semitic hate incidents across the country, the Senate on Thursday took action by passing a bill aimed at limiting the free-speech rights of college students who express support for Palestinians.
By unanimous consent, the Senate quietly passed the so-called Anti-Semitism Awareness Act, only two days after it was introduced by Sens. Bob Casey, D-Pa., and Tim Scott, R-S.C.
A draft of the bill obtained by The Intercept encourages the Department of Education to use the State Department’s broad, widely criticized definition of anti-Semitism when investigating schools. That definition, from a 2010 memo, includes as examples of anti-Semitism “delegitimizing” Israel, “demonizing” Israel, “applying double standards” to Israel, and “focusing on Israel only for peace or human rights investigations.”
Critics have pointed out that those are political — not racist — positions, shared by a significant number of Jews, and qualify as protected speech under the First Amendment of the Constitution.
According to the draft, the bill does not adopt the definition as a formal legal standard, it only directs the State Department to “take into consideration” the definition when investigating schools for anti-Semitic discrimination under Title VI of the Civil Rights Act.
The memo’s definition — which is widely supported by Israeli advocacy groups — was intended for identifying anti-Semitic groups overseas. Even then, it came with caveats. Criticisms of Israel are only examples of possible anti-Semitism “taking into account the overall context,” and the memo concludes: “However, criticism of Israel similar to that leveled against any other country cannot be regarded as anti-Semitic.”
Attempts to adopt the definition as a standard for campus censorship have drawn criticism from civil rights groups, free speech advocates, newspapers, hundreds of academics, and even one of the definition’s crafters, who wrote a column last year arguing it should not be applied to campuses.
The bill approved by the Senate on Thursday was supported by the American Israel Public Affairs Committee (AIPAC), the Jewish Federations of North America, and the Anti-Defamation League.
“The definition will have a severe chilling effect on campuses, and that is the explicit goal of the Israel advocacy organizations who promote it,” said Liz Jackson, an attorney with the group Palestine Legal. “Student activists for Palestinian rights already operate in a repressive environment. If this bill passes, they will face the specter of federal investigation simply for engaging in criticism of the Israeli government’s abusive policies.”
Campus activists are being subject to an increasingly broad censorship effort by Israeli-allied groups. Each year, Palestine Legal documents hundreds of instances of obstruction, censorship, or punishment of pro-Palestinian activism at colleges and universities.
In December 2015, for example, one student at George Washington University was ordered by campus police to remove a Palestinian flag from her window, and threatened with further disciplinary action. At other campuses, students have been suspended or threatened with expulsion for demonstrating against the Israeli occupation of the West Bank. The University of Illinois in 2014 fired a tenure-track professor for tweeting about Israel’s bombardment of Gaza.
Filing complaints with the Department of Education has been a favored tactic of groups including the Zionist Organization of America and the Brandeis Center, which have written letters to the department alleging that events like demonstrations and film screenings amount to “harassment” or “intimidation,” and create a “hostile environment on the basis of national origin” for Jewish students on campus.
The Department of Education has investigated and dismissed four such cases, against UC Irvine, UC Santa Cruz, UC Berkeley, and Rutgers University, ruling that “robust and discordant” expression is to be expected on a college campus, and that the events described “do not constitute actionable harassment.”
The investigations nonetheless amount to public relations victories for Israeli advocacy groups, who can circulate articles about how pro-Palestinian activists are under investigation for anti-Semitism, while the activists have to deal with the months-long burden of being under government investigation.
Civil rights groups are confident that if the Department of Education actually did use the State Department’s standard, the courts would quickly find it unconstitutional.
“If the Department of Education were to enforce this definition by restricting student speech critical of Israel, it would violate the First Amendment,” said Jackson. “The right to criticize a government — the U.S., Israeli, or any other government — is an enshrined constitutional freedom in our country. The Senate can’t legislate that away.”
Jewish groups opposed to the Israeli occupation of the West Bank were quick to denounce the bill.
“Instead of fighting the anti-Semitism entering the White House, this bill will go after 19-year-old students carrying protest signs against human rights abuses,” said Tallie Ben Daniel, academic program manager for Jewish Voice for Peace, in a statement. “This is not how to fight anti-Semitism, this is a recipe for restricting civil liberties like the right to criticize a government for its policies.”
It is unclear when the House will consider a counterpart bill.