Know Your Rights: We Must Not Ignore the Alarming Rise of Antisemitism

Those who remember the horrors of World War II likely think that those types of large-scale atrocities committed primarily against Jews could never happen again. Unfortunately, over the last several years, there has been a rise in antisemitic attacks both here in the United States and abroad. This is not to suggest that this rise is similar in scale to what happened in World War II. Nevertheless, it is essential for us to recognize this growing dangerous trend to ensure such atrocities do not occur again and that the rights of Jews are protected.

In this regard, the ACLJ has been at the forefront of numerous issues related to the Jewish State of Israel, including most recently at the International Court of Justice. The ACLJ is very much engaged here in the United States as well. This past year, for example, the ACLJ filed a Title VI complaint against the City University of New York for antisemitic discrimination. The ACLJ is committed to defending victims of these antisemitic attacks and, as such, has written a legal memorandum explaining how the federal government now provides better protection to such victims.

In our memo, we first reference the following troubling data:

[A]lthough Jews make up only roughly two percent of the population, they are consistently the most likely of all religious groups to be victimized by incidents of hate, and that such incidents are increasing at an alarming rate. Moreover, over thirty percent of Americans claim they do not know what the word antisemitism means or have never even heard of the word. Worse, eighty-five percent of Americans believe at least one antisemitic trope. . . .

Based on an Anti-Defamation League (ADL) audit of antisemitic incidents (which include harassment, vandalism, and assaults in the United States), the 2018 incident total was forty-eight percent higher than the number of incidents in 2016 and ninety-nine percent higher than 2015.

Our memo then explains the way in which Title VI of the Civil Rights Act of 1964 provides legal protection to victims of discrimination.

In the United States, Title VI “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.” The Office for Civil Rights (OCR) in the United States Department of Education “is responsible for enforcing Title VI as it applies to programs and activities funded by” the U.S. Department of Education.

Our memo, however, notes:

Title VI does not give OCR jurisdiction to investigate incidents of religious discrimination. Until 2004, OCR was making the same mistake that many university offices are still making today: they were declining to investigate antisemitic complaints under their regular well-established framework for dealing with discrimination against other minorities because they saw Jews as only a religious group, and not a race, ethnicity, or type of national origin.

Thankfully (and as our memo explains), then U.S. Department of Education Deputy Assistant Secretary for Enforcement Kenneth L. Marcus, in a September 13, 2004, Dear Colleague letter, issued a series of policy statements that emphasized the “right of all students, including students of faith, to be free from discrimination in our schools and colleges under Title VI . . . .” (Emphasis added.)

Assistant Secretary Marcus wrote the following:

[W]e must remain particularly attentive to the claims of students who may be targeted for harassment based on their membership in groups that exhibit both ethnic and religious characteristics, such as Arab Muslims, Jewish Americans and Sikhs. . . .

No OCR policy should be construed to permit, much less to require, any form of religious discrimination or any encroachment upon the free exercise of religion.

Our memo further highlights what then-Assistant Attorney General Thomas E. Perez explained in his September 8, 2010, letter to then-Assistant Secretary for Civil Rights Russlynn H. Ali, which reaffirmed what Assistant Secretary Marcus wrote in 2004: “Although Title VI does not prohibit discrimination on the basis of religion, discrimination against Jews, Muslims, Sikhs, and members of other religious groups violates Title VI when that discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than its members’ religious practice.” This important reasoning has been confirmed in court both in Title VI cases and in the Title VII context.

In our memo, we also explain that under Title VI, harassing behavior is only illegal and, therefore, subject to regulation if it is based on an illegal, discriminatory intent. The problem for OCR was that without a definition of antisemitism to use as a reference, the unanswered question of how to determine illegal antisemitic intent meant that Jewish students were always vulnerable to attack.

Nevertheless (and as discussed in our memo), as a result of former President Trump’s December 11, 2019, Executive Order (EO), this issue was clarified in two important ways. First, the EO codified the now long-standing policy that protected Jewish students from antisemitic attacks. The EO reads, in part: “It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.”

Second, “[i]n enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin,” the EO stated that “all executive departments and agencies (agencies) charged with enforcing Title VI shall consider” the International Holocaust Remembrance Alliance’s (IHRA’s) definition of antisemitism.

This non-legally binding working definition of antisemitism, which was adopted by the IHRA on May 26, 2016, reads as follows: “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

Despite this significant progress, some argued (and still argue) that formally adopting the IHRA definition is somehow an attack on free speech (based on the legal doctrines of overbreadth and vagueness). But as we explain in our memo, these arguments, as applied to the EO and similar policies, are wrong for at least six reasons:

First, the EO simply did not restrict or prohibit speech. Every person remains perfectly free to say what they want, however abhorrent, about Jews and/or the Jewish State of Israel. . . .

Second, “for there to be a violation of free speech, the order would have to be about regulating private speech, not government speech.” All the EO does . . . is explain how the government defines antisemitism when it is deciding where to allocate its money. . . .

Third . . . [t]he government is free to advance its own permissible goals, including being against antisemitic discrimination as defined by a well-accepted standard. Doing so is not impermissible viewpoint discrimination.

Fourth, the EO does not chill speech because there is no threat that the government will ever even investigate let alone bar any permissible speech of any kind. . . .

Fifth, the EO does not create any new gray areas of overly broad speech/act non-distinction. It simply uses the longstanding definition of harassing conduct in Title IX and Title VI cases, a definition that has been upheld numerous times in a variety of cases and contexts. . . .

And finally, the EO has a savings clause, which specifically limits the use of the IHRA definition to fall within constitutional parameters.

Despite some pushback both domestically (described above) and internationally, the IHRA’s antisemitism definition is gaining momentum on the world stage in a variety of important contexts. For example, both former President Trump and President Biden have endorsed IHRA’s definition. And to date, about 39 U.N. Member States have adopted or endorsed IHRA’s definition.

As we conclude in our memo, even with these significant positive steps, antisemitism is still on the rise. That is why the work of the ACLJ is so important. That is also why your support matters. As such, if you or someone you know is suffering from antisemitic harassment or discrimination, please know that we have been providing free assistance and legal representation to people just like you for decades. If your rights are being violated in this area, please contact us at ACLJ.org/HELP.