Editorial: Undermining free speech on campus

The U.S. Senate last week approved a bill that was advertised as a way to help the federal government combat harassment against Jewish students on college campuses. But the Anti-Semitism Awareness Act is both unnecessary to achieve its stated goal and fraught with 1st Amendment problems. If it is also approved by the House, President Obama should veto it.

The legislation, sponsored by Sens. Tim Scott (R-S.C.) and Bob Casey (D-Pa.), was proposed as a remedy for anti-Semitic acts directed at students and faculty members. But the Department of Education already has the legal tools necessary to punish colleges and universities that don’t deal effectively with acts of violence or intimidation motivated by racial or religious hatred, including anti-Semitism.

This legislation is really about something else entirely: Israel. What it does is to endorse an expansive definition of anti-Semitism that was adopted by the State Department in 2010 as a benchmark for diplomats. The problem with the definition is that it unfairly conflates anti-Israel speech with anti-Semitic speech, in a way that, if enforced, would violate the free speech rights of students and professors. Among other things, the examples of anti-Semitism provided by the State Department’s definition include denying Israel’s right to exist, “demonizing” Israel by blaming it for “all interreligious or political tensions” and judging Israel by a double standard “requiring of it a behavior not expected or demanded of any other democratic nation.”

But is it necessarily anti-Semitic to harshly criticize the Jewish state or to argue that it should be replaced by something else, such as a secular, binational nation? While there are, of course, anti-Semites among Israel’s many critics, it does not follow that opposition to Israel is inherently anti-Semitic, and it should not be treated as such.

As we noted last year in opposing a campaign to have the University of California endorse this same definition: “It’s hard to see how these standards could be transplanted to the campus of a public university committed to a robust exchange of views and subject to the free-speech provisions of the 1st Amendment. Would pro-Palestinian students who mounted a protest against Israeli policies in the West Bank be judged anti-Semites because they didn’t also demonstrate against repression in Egypt or Russia? What about a student who wanted to argue that Israel should be replaced by a nonsectarian state? Even those who find such a position unrealistic or undesirable might agree that it needn’t be driven by hatred for Jews.”

Eventually UC’s regents decided not to endorse this definition, instead adopting a set of “principles against intolerance” that condemned what they called “anti-Semitic forms of anti-Zionism” as one of several forms of discrimination that had no place at the university. Backing off the original proposal was a wise decision that balanced a legitimate concern about unacceptable bigotry with a respect for free speech.

The same balanced approach should guide the federal government. It should by all means continue to enforce the existing language in Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin at educational institutions that receive federal aid (and which government lawyers also interpret to protect religious minorities). But if the Anti-Semitism Awareness Act were to pass, it would require the Education Department to “take into consideration” the State Department definition in determining whether an alleged action was motivated by anti-Semitic intent, and thus possibly a violation of Title VI that could lead to a loss of federal funding.

While the bill passed by the Senate includes an assurance that it is not meant to “diminish or infringe upon any right protected under the 1st Amendment,” that is exactly what it does. Its overly broad definition of anti-Semitism would blur the distinction between acts of intolerance directed at individuals and criticism of the state of Israel. University officials and the Education Department must be vigilant in preventing and punishing the former; they have no business policing the latter.

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