Freedom of speech and the Anti-Semitism Awareness Act on college campuses

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Incidents of anti-Semitism have risen alarmingly over the past two years. According to FBI statistics, there were more hate crimes against Jews in 2015 than against any other religious group. Anti-Jewish assaults rose by more than 50 percent from 2014. Anti-Semitic harassment seems to be acutely problematic on U.S. college campuses, with over half of all Jewish students polled indicating that they’d witnessed or directly experienced acts of anti-Semitism at their colleges or universities. A 2016 study showed a 45 percent increase in campus anti-Semitism. One common tactic is to use criticism of Israel as a tool to target and marginalize Jewish students.

While incidents of anti-Semitic harassment and assault are surging, the problem is, sadly, not new. In 2004, the U.S. Department of Education’s Office for Civil Rights (“OCR”) committed to investigate claims of anti-Semitism under Title VI of the Civil Rights Act of 1964. Shockingly, despite well-documented incidents in the twelve years since this commitment was made, the OCR has failed to find a single violation of Title VI. One critical problem is that OCR lacks a workable definition of anti-Semitism. Absent such a definition, OCR staff fail, time and again, to recognize anti-Semitism when they see it. As a result, university campuses across the United States are becoming increasingly hostile places for Jewish students.

The Anti-Semitism Awareness Act (“AAA”) of 2016 is a bi-partisan solution to this definitional problem. Passed by unanimous consent of the Senate on Dec. 1, 2016, the AAA directs the OCR to use the U.S. State Department’s definition of anti-Semitism when evaluating hostile environment complaints under Title VI. The State Department provides a clear definition of anti-Semitism, including helpful examples that will make OCR evaluation of complex complaints easier.

Following Senate action, the AAA has been the target of an extraordinary misinformation campaign, with much of the unreliable commentary centering on free speech concerns. It is claimed that the AAA would make anti-Semitic speech—with particular worries apparently centered on anti-Israel rhetoric—illegal or otherwise punishable on college campuses. This claim is absolutely false.

For better or worse, the First Amendment to the U.S. Constitution protects “the speech we hate,” including the rankest forms of anti-Semitic speech. The AAA cannot change that, nor does it aim to.

In examining whether anti-Semitic activity is “severe, persistent, or pervasive” enough to constitute an actionable hostile environment under Title VI, it is crucial that the OCR be able to recognize anti-Semitism in action. In such cases, speech can be evidence of intent.

Consider, for example, the case of a Jewish student being attacked physically by other students. Is this anti-Semitism? Was this attack part of a drunken bar brawl, or was it a pointed attack on a Jewish student, because he is a Jewish student, motivated by discernible anti-Semitic bias? The key, of course, is the intent behind the attack. Was the student singled out for the attack because he is Jewish? Evidence of intent may well lie in what the attackers said at the time of the assault. Did they scream anti-Semitic epithets or otherwise mutter anti-Israel or anti-Zionist language? In such a case, the AAA directs the OCR to consider the State Department’s definition of anti-Semitism in evaluating the assailants’ actions.

Speech in such a case is evaluated not for its point of view, but rather for the evidence it provides as to the motive of the assailant. This kind of inquiry into motive, with speech taken as evidence of intent, is entirely consistent with U.S. Supreme Court precedent and, indeed, with modern hate crimes legislation, like the recently-enacted Shepard-Byrd Act, which was enthusiastically supported by such speech-protective groups as the ACLU. Acts are punished, not mere thoughts, or speech, or belief. The AAA does no more; its supporters aim to do no more.

It is critical that college and university campuses remain spaces where Jewish students can learn without fear of anti-Semitic assault or harassment. They have that right. The AAA seeks to protect that right and the right of free speech generally. The AAA is not at cross-purposes with American values of freedom of speech and expression, and it does not violate the First Amendment. It does no more than provide an enforcement mechanism for constitutional federal law. Those of us committed to freedom of speech have no reason to fear it. On the contrary, we encourage the 115th Congress to pass this smart and critically necessary measure immediately.

The Department of Education is poised for new leadership and will need to respond to growing anti-Semitism in higher education. Now is the time for Congress to act.

Gilreath serves as a Professor of Law and Professor of Women’s, Gender, and Sexuality Studies at Wake Forest University. He is a nationally recognized expert on equality, sexual minorities and constitutional interpretation and has authored antidiscrimination legislation for jurisdictions across the country.

Freedom of speech and the Anti-Semitism Awareness Act on college campuses

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