WaPo Opinion | How civil rights law distorts the anti-Zionism vs. antisemitism debate
The wrongs of campus protests can’t be adequately righted or even defined by civil rights law.
2 May 2024
Jason Willick
Is the anti-Zionism espoused by campus activists antisemitic? Israel’s supporters tend to say yes — antipathy toward the existence of the world’s only Jewish state is a form of antipathy toward Jews as such. Israel’s opponents tend to say no — anti-Zionism is motivated by universal values, not prejudice against any group.
I’d submit that the better answer is: Who cares?
Anti-Zionism can be violent and virulent even if those espousing the revolutionary ideology are not antisemites. And the fact that some anti-Zionist arguments are antisemitic does not put them outside the bounds of First Amendment protection. Even if it were possible to draw a Venn diagram of anti-Zionism, antisemitism and their overlap, it would be a poor basis for refereeing America’s Israel debate.
So why does the discussion of campus turmoil keep getting routed through this supposed dichotomy? One reason is U.S. civil rights law and the pattern of thinking it encourages. The House of Representatives voted on Wednesday to amend civil rights law as it relates to Jews by defining more anti-Zionist speech on campus as antisemitic. The Antisemitism Awareness Act is a bad bill because it threatens to infringe on constitutionally protected anti-Israel speech. But even if it didn’t, the whole exercise illustrates the inadequacy of civil rights law for righting or even defining modern campus wrongs.
Some legal background: Title VI of the Civil Rights Act of 1964 prohibited discrimination in federally funded colleges and universities based on “race, color or national origin.” Intended primarily to protect Black people, the Education Department determined in 2004 that it also protected Jews. Protests like those taking place today could constitute discrimination against Jews if they are so “severe” and “pervasive” that they deny Jewish students “equal access to an institution’s resources and opportunities,” as the Supreme Court has put it (defining harassment in a different context).
Civil rights law is one reason the anti-Zionism vs. antisemitism distinction has become all-important. If protests are “merely” anti-Zionist, then for the purposes of Title VI, it doesn’t matter how disruptive they are or how abhorrent their aims. Civil rights law doesn’t say anything about discrimination based on political viewpoint. Zionism is obviously closely related to Jewish identity, but a minority of Jews are not Zionists and, more importantly, many Americans, such as President Biden, are Zionists without being Jewish. Only antisemitism can trigger federal involvement under the terms of the law.
Hence the House’s legislation this week instructing the Education Department to use an expansive definition of antisemitism. Passed 320-91, the bill would codify the definition and examples created by the International Holocaust Remembrance Alliance. The IHRA examples of antisemitism include “denying the Jewish people their right to self-determination” and “applying double standards” to Israel. This framework has been consulted by the Education Department since 2018 but would become more permanent and binding if ratified by Congress.
Many of the acts at anti-Israel campus protests have been unlawful on their face, and local police should handle lawbreaking. But the IHRA definition would widen the net. More anti-Zionist or anti-Israel speech could face federal scrutiny for violating civil rights law.
The First Amendment concerns about this legislation are serious, but put them to one side for a second. The entire civil-rights-based system for regulating the Israel debate is flawed. If passed by the Senate and signed into law, the legislation would imply that the reason the federal government should crack down on anti-Zionist campus advocacy is because it is antisemitic. That misstates the problem in American society that the protests represent.
As Joshua Muravchik argued in the Wall Street Journal in December, anti-Zionism in the modern West can be more dangerous than antisemitism. “Until the Holocaust, most Jews were anti-Zionist, believing that fighting mistreatment where they lived was more practical than migrating to the Middle East to create a Jewish state,” he wrote. Today, however, “There is no escaping the reality that the end of Israel could only mean the death of millions of its Jews.”
That doesn’t mean that anti-Zionist speech should be punished — all viewpoints, including nakedly antisemitic ones, enjoy First Amendment protection. But it calls into question the usefulness of singling out the portion of anti-Zionism judged to be antisemitic. Civil rights law creates an incentive for such line-drawing, but is that really the best use of Israel supporters’ energies?
Hamas is a murderous, revolutionary guerrilla movement dedicated to Israel’s destruction. There is, of course, a spectrum of views on Hamas in the ranks of student protesters. But appearing to root for the group’s success is not unlike rooting for the Khmer Rouge in Cambodia in the 1970s or the Islamic State in the 2010s. Pervasive campus displays of support for most foreign terrorist groups would probably not violate civil rights laws. But they would be no less alarming for that reason.
Put another way, the civil rights laws are well-suited to targeting political radicalism on the right, to the extent that far-right movements express hostility toward minority groups. They’re less well-suited to targeting political radicalism on the left, when it frames its agenda in the language of equality, with goals such as ending capitalism, colonialism and national borders. Who could oppose freeing the world from oppression? When groups such as Hamas apply hideous violence in what they claim is the pursuit of a progressive goal, the inevitable progressive expressions of sympathy don’t fit neatly into antidiscrimination’s legal edifice.
Supporters of Israel understandably want to use Title VI laws to their advantage in Middle East debates. They shouldn’t allow a peculiar American legal regime to distort the ideological stakes. Israel was founded through impressive feats of statecraft 16 years before the passage of the Civil Rights Act. That laudable legislation shouldn’t be relied on by those who want to defend the Jewish state from isolation and destruction today. |
