Nora Barrows-Friedman
The Electronic Intifada / January 16, 2023
Civil rights experts and Palestine solidarity activists are commending the US Department of Education for not caving into demands by Israel lobby groups and lawmakers to redefine anti-Jewish bigotry to include criticism of Israel.
At the beginning of the year, the federal body’s Office for Civil Rights released a fact sheet outlining the government’s obligations to protect students based on religious and ethnic perceptions.
The document explains civil rights protections that already exist under current law for Jewish, Sikh, Muslim, Buddhist and Hindu students facing discrimination.
It contains no reference to Israel in its examples of anti-Jewish bigotry. Rather, it correctly defines anti-Semitism as relating to discrimination and harassment based on the targeting of Jews for being – or being perceived as – Jewish.
“This is the Office for Civil Rights understanding that the fight against anti-Semitism is linked with other forms of racism and xenophobia, and seeing them as part and parcel of the same struggle,” Lina Assi, advocacy manager at the civil rights group Palestine Legal, told The Electronic Intifada.
She added that it “reaffirms First Amendment rights and gives students on campus the space to continue to advocate for Palestinian rights without fear of reprisal or attacks from university administrators or external pro-Israel advocacy groups.”
Such lobby groups had pressured the Department of Education’s Office for Civil Rights to enshrine US President Donald Trump’s 2019 executive order directing government agencies to adjudicate civil rights complaints using the International Holocaust Remembrance Alliance’s “working definition” of anti-Semitism (IHRA).
Promoted by Israel and its lobby, the IHRA definition conflates criticism of Israel, on the one hand, with anti-Jewish bigotry, on the other.
It has become the Israel lobby’s key weapon in North America and Europe to enforce censorship about Israel’s crimes against Palestinians.
But the IHRA definition has come under sustained scrutiny and pushback by students, scholars and legal experts.
Even the definition’s lead author, Kenneth Stern – formerly a major player in the American Jewish Committee – has strongly opposed efforts to enshrine it in legislation or university rule books, arguing that this would unconstitutionally infringe on free speech.
Nevertheless, Israel lobby groups and pro-Israel lawmakers have continued to pressure the Department of Education to formally adopt the IHRA into regulation – including Kenneth Marcus, who led the Office for Civil Rights under the Trump administration.
Marcus helped draft Trump’s executive order.
In an opinion piece published by Newsweek on 9 January, Marcus complained that the Jewish community was under attack by the Department of Education’s refusal to codify the IHRA.
He said he had expected the Biden administration to carry forward the Trump-era directive, and scoffed at the single example given by the OCR in its fact sheet on what constitutes anti-Jewish bigotry.
“To address anti-Semitism, this guidance offers only a single, obvious example regarding a student who is made to feel unsafe by other students who place notes with swastikas on the student’s backpack, perform Nazi salutes, and make jokes about the Holocaust,” Marcus wrote.
“While administrators need guidance to explain hard cases, this sort of example is too self-evident to be helpful,” he added.
He urged Catherine Lhamon, the Department of Education’s current assistant secretary, to live up to the office’s commitment to Trump’s executive order and codify the IHRA definition “and its guiding examples relative to Israel.”
Notably, Marcus resigned from his Department of Education post in 2020 after it was revealed that he gave the Zionist Organization of America special treatment in reopening a complaint against Rutgers University.
He returned to lead the Louis D. Brandeis Center for Human Rights, a pro-Israel lawfare organization, to continue attacking students who defend Palestinian rights and file complaints to the Department of Education’s Office for Civil Rights – and to remain a vocal proponent of the IHRA definition.
Twisting civil rights law
That the OCR would re-issue its discrimination definitions and not add the IHRA distortions is reassuring to supporters of Palestinian rights, lawyers say.
However, the Department of Education did not say it was permanently scrapping Trump’s executive order.
In a public email message announcing the January fact sheet, the OCR reaffirmed its compliance with the order, referring to a 2021 questions and answers guide on its website.
The OCR said it was delaying its timeline to propose implementation of the executive order to December of this year.
Palestine Legal told The Electronic Intifada that this postponement “should not be interpreted as an endorsement of the IHRA definition because Trump’s order merely directs all agencies enforcing relevant discrimination law to ‘consider’ the IHRA definition, which the OCR certainly has done.”
The civil rights group says that it has been part of a campaign to discourage the OCR from adopting the IHRA guidelines in Trump’s executive order.
Palestine Legal, in coalition with 16 other civil rights organizations, sent a letter to the Department of Education in August warning that implementation of the IHRA would infringe on free speech and further harm Palestinian and Muslim academics and students.
“Concerns that the IHRA definition will be used to reinforce anti-Palestinian racism and to censor constitutionally protected speech are not abstract or theoretical but based on extensive experience,” the groups wrote.
The coalition will be working over the next year to reinforce widespread opposition to the IHRA definition, Lina Assi from Palestine Legal stated, as the Department of Education considers implementing the definition by the end of 2023.
Meanwhile, legal advocates are continuing to help students and activists push back against the IHRA in a wider scope.
“The Israel lobby has its hands in a lot of places to try and expand the authority of the IHRA, and the Department of Education’s Office for Civil Rights is only one arena where they’re trying to push it through – and luckily, they’ve failed in that regard,” Assi said.
But, she explained, Israel lobby groups are trying to codify the IHRA in state legislatures.
Arizona adopted the definition in April 2022, and Virginia has recently introduced both state house and senate bills to adopt the IHRA.
“There’s a whole terrain we have to mobilize against, but we’re happy to see how OCR’s decision played out,” Assi said.
Nora Barrows-Friedman is a staff writer and associate editor at The Electronic Intifada, and is the author of In Our Power: US Students Organize for Justice in Palestine (Just World Books, 2014)
