November 9, 2017

Photo by Ariel Hayat (CC BY 2.0)

On Tuesday, the House Judiciary Committee held a hearing titled, "Examining Anti-Semitism on College Campuses” to discuss the sharp rise in anti-Semitism at universities. One problematic solution proposed included labelling the free speech of students supporting the Boycott, Divestment and Sanctions (BDS) movement as a violation of Title VI of the 1964 Civil Rights Act. Enacting these types of measures would chill the free speech of students and faculty.

Conflating criticism of Israel with anti-Semitism

Introduced in the House of Representatives in 2016 and discussed during this week’s hearing, 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 ACLU, in a letter sent to Congress, determined that the bill would have serious constitutional implications because “one interpretation [of the bill] would be that vigorous on-campus anti-Israel political advocacy could be deemed a violation of Title VI of the Civil Rights Act. It cannot and must not be that our civil rights laws are used in such a way to penalize political advocacy on the basis of viewpoint."

The right to criticize a government is enshrined in the Constitution. MPAC President Salam Al-Marayati made this argument in his op-ed published by the Jewish Journal: “No good has ever come from criminalizing peaceful protest, whether through substance or intent, or the exercise of free speech, and it will not be any different in this case.”

Furthermore, Wake Forest University Professor Barry Trachtenberg testified in the hearing that, “students who engage in speech critical of Israeli policy are largely motivated by their concern for Palestinian human rights. They are not motivated by anti-Semitic hate, but its opposite—a desire to end racial and religious discrimination of all kinds.” 

Students’ free speech rights chilled by BDS opponents

Institutions of higher learning should cultivate the safe and free marketplace of ideas to discuss topics without fear of retribution or punishment by both students or school administrations. But, some opponents of the BDS movement have resorted to tactics that include restricting students’ First Amendment rights and shutting down dialogue on college campuses.

Students continue to face intimidation reminiscent of McCarthyist tactics. For example, BDS opponents like David Horowitz launched a campaign that includes blacklisting Palestine-supporting students and professors. University of California Regent Richard Blum suggested that the UC Regents ought to consider suspending or expelling students engaging in activities critical of the state of Israel.

Civil rights nominee will limit constitutional liberties

President Trump nominated Kenneth Marcus to serve as Assistant Secretary for Civil Rights in the Department of Education. The assistant secretary oversees the Office of Civil Rights -- a federal agency with the responsibility of ensuring equal access to education through the enforcement of civil rights. If students are being accused of being anti-Semitic through BDS activism, then Marcus could pursue a civil rights prosecution under Title VI of the 1964 Civil Rights Act -- which prohibits discrimination on the basis of race, religion, color and national origin in federal fund-assisted organizations.

Marcus seeks to codify the State Department definition of anti-Semitism. During his time at the Brandeis Center, he advocated for crackdowns on Palestine advocates and for laws to punish Americans that are supportive of the BDS movement. He pressured state legislatures to ban contracts with individuals who refuse to pledge not to boycott Israel. As Assistant Secretary, he will likely work to punish Palestine advocates by conflating anti-Semitism with criticism of the Israeli government.

Friend, write the Senate Committee on Health, Education, Labor and Pensions a letter and tell them to reject Kenneth Marcus. His confirmation would continue the erosion of our students’ rights to express themselves.

The Israeli-Palestinian conflict is complex, but shutting down open dialogue on this issue is not a solution. We have a history of celebrating our institutions of higher learning as places where we can discuss difficult issues without fear of retribution from others. This conflict is one of many that needs to be discussed and debated in a healthy manner and in a safe environment, particularly when it comes to critiques of Israeli policies. By directing the Department of Education to adopt the State Department definition of anti-Semitism, Congress is setting a dangerous precedent that is antithetical to the First Amendment’s free speech clause and the purposes of higher learning.