Defending the Oppressed and Putting an End to Anti-Israel, Anti-Semitic Discrimination

We at the ACLJ have been very concerned about the rise of anti-Israel sentiments in America, including the increased attention being paid to the BDS (Boycott, Divestment & Sanctions) Movement, a long term project created by anti-Israel activists which is designed to delegitimize the State of Israel by any means possible, and often in flagrant violation of the law.

Activities and events fostering an environment of intimidation and marginalization of Jewish citizens have seen a marked upswing on college and university campuses around the country, but the issue is not limited to the academic arena. Businesses that sell Israeli products have been harassed by pro-BDS picketers, labor unions have passed resolutions supporting divestment from Israeli institutions and corporations, and even government agencies have cancelled plans to visit Jerusalem based on claims that Israel’s border security measures—a primary means of defending the country from imminent terrorist threats—are discriminatory.

As a non-profit organization dedicated to protecting constitutional liberties—especially the rights to free speech and religious expression—by engaging legal, legislative, and cultural issues through advocacy, education, and litigation, the ACLJ has had years of experience negotiating the lines between rights and wrongs. We firmly believe that in both public and private institutions, the freedom of speech, even offensive speech, should be cherished and respected as part of what makes our democracy so great. But as the U.S. Department of Education’s Office of Civil Rights has made clear, there are times when speech crosses over into harassment, and invidious discrimination.  Harassment can be verbal, and if, for example, it is severe, persistent, or pervasive enough to limit or deny a student's ability to participate in or benefit from an educational program, that speech is not protected.

Title VI of the Civil Rights Act of 1964 prohibits discrimination in federally assisted programs and activities, on the basis of race, color, or national origin. A violation of Title VI may be found if discrimination is encouraged, tolerated, not adequately addressed, or ignored by administration. If an organization violates Title VI, complaints may be filed in the U.S. Department of Education’s Office for Civil Rights or in the federal district courts. Under the Marcus Policy initiated in 2004, Jewish people are now protected under Title VI; although Title VI does not use the word “religion,” Jewish students are protected from discrimination based on their perceived ethnic, racial or ancestral background.

The ACLJ does not believe in stifling freedoms, but we do believe in following the law and making sure that no one country or people are singled out for attack. While some may argue that in practice these are difficult lines to draw, we firmly disagree, and will continue to point out that there are clear bright lines that already exist. The U.S. Commission on Civil Rights and the U.S. Department of State have both adopted the European Monitoring Center on Racism and Xenophobia (EUMC) International Working Definition of Anti-Semitism, which states that:

“Anti-Semitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” The guidelines continue, noting that “such manifestations could also target the state of Israel, conceived as a Jewish collectivity. Anti-Semitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong.” It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits.”

Particularly as it relates to the State of Israel, both the U.S. Commission of Civil Rights and the State Department list several examples (drawn from the EUMC) of what would constitute anti-Semitic (as opposed to protected free speech) action in this context. These include, but are not limited to:

1. Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.
2. 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.
3. Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.
4. Using the symbols and images associated with classic anti-Semitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
5. Drawing comparisons of contemporary Israeli policy to that of the Nazis
6. Holding Jews collectively responsible for actions of the state of Israel.

Organizations must be vigilant in making sure that any free and protected speech in any forums that they open does not cross the line into hateful anti-Semitic and illegal remarks, the kind of commentary that could easily make one group of people uncomfortable, and limit their ability to participate.

We know that for people who do not have a lot of experience dealing with the BDS movement and all of the related issues, it can be all too easy to accidentally walk into a tense situation, and it can become quickly overwhelming when such a situation suddenly arises, especially if it happened in an unforeseen manner. To that end, we at the ACLJ have recently started a process of advising organizations about strategies and best practices for making sure that the tide halts before there is a crisis. To those organizations that need advice, we are here to help you.

To the students, faculty, employees, or other members of any organization who are threatened and harassed, we are fighting to protect you.

And to those who would continue to single out one nation and one people for discrimination and harassment, you are now officially on notice.