Lawfare Project Submits Testimony to House Judiciary Committee in Support of Anti-Semitism Awareness Act

Last week, The Lawfare Project submitted written testimony to the House Judiciary Committee, in support of the Anti-Semitism Awareness Act. Yesterday, we learned that our testimony has been included in the record of the recent Committee hearing on campus anti-Semitism.

The text of the testimony appears below, and the PDF version is available here.

***TESTIMONY BEGINS***

The Anti-Semitism Awareness Act of 2016 Does Not Violate the First Amendment

Contrary to the specious arguments advanced by its opponents, and despite valiant attempts to distort its plain language, the Anti-Semitism Awareness Act of 2016 (“AAA”), H. R. 6421, does not impinge on First Amendment-protected expression. Instead, it provides the Department of Education with a powerful and invaluable tool, essential to the diagnosis and rehabilitation of a pervasively hostile campus climate for Jewish students.

The purpose and function of the AAA is clear-cut and unambiguous: it provides the U.S. Department of Education with a reference to define and identify anti-Semitism, in order to assist the Department in evaluating whether or not a federally funded university campus is hostile to Jewish students. Nothing more, nothing less. It neither prohibits nor penalizes any specific statements or the content thereof, even if offensive, hurtful, or bigoted. Contemporary anti-Semitism manifests in ways that are not immediately recognizable to those who do not face (or study) this type of age-old bigotry and, therefore, such a reference is crucial in order to ensure that the Department is empowered to properly apply existing law (namely, Title VI) to protect Jews—and those perceived as Jewish—in their academic pursuits.

In the campus context, a violation of Title VI requires a finding that there exists a hostile environment so severe, persistent, or pervasive that it interferes with or limits students’ ability to participate in or benefit from the services, activities, or opportunities offered by the school, and that this environment is the result of harassment, threats, or intimidation on the basis of the targeted students’ protected status (such as race, ethnicity, or shared ancestry). When determining whether a hostile environment is so pervasive that it violates Title VI, the Department of Education is obligated to examine the totality of the circumstances, looking at such factors as the context, nature, scope, frequency, duration, and location of incidents, and the identity, number, and relationships of the persons involved. Because the practices that foster or facilitate an unlawfully hostile environment must be motivated by discriminatory intent, the Department must necessarily consider a range of conduct and expression (physical, verbal, graphic, or written) to determine whether the requisite intent existed and motivated the harassment at issue.

As is the case in reviewing potential violations of most other laws, civil or criminal, it is appropriate and necessary to consider the speech of the perpetrator(s) in order to discern his or her intent. However, speech alone would almost never be enough to constitute a violation of law, especially in the context of Title VI, which already imposes a high bar in proving an overall, pervasively hostile environment.

The AAA does not empower the Department to punish any particular speech, nor does it compel any particular outcome of an investigation by the Department into whether a campus environment amounts to a violation of Title VI. It does not contain any penalties and does not impose any consequences whatsoever on any actor, civilian or state, and cannot be said to impinge on protected speech in any way.

As a hypothetical, picture a scenario where a graphic is posted on a university bulletin depicting a Jewish Star of David atop stacks of cash. If the Department of Education commences an investigation of the university climate pursuant to Title VI, reference to the AAA may enable it to identify the graphic as representing the anti-Semitic canard that Jews control the world financial system. Does the language of the AAA obligate the Department to designate the graphic as a form of anti-Semitic harassment? No. Does the AAA direct the Department to find that a hostile environment exists on that campus? No. Does the AAA require that the Department punish the individual who created or posted the graphic, or the university administration based on how it handled the situation? No. Ultimately, the AAA does no more than signal to the Department that this particular graphic is associated with anti-Jewish animus and bigotry, which the Department can consider if it has occasion to analyze whether a larger pattern of problematic conduct, if it exists, may have been motivated by anti-Semitism.

In light of the AAA’s seemingly limited utility, one might ask why a definition of anti-Semitism needs to be outlined and codified. The answer is that, despite the increased prevalence of anti-Semitic harassment and intimidation on U.S. campuses, contemporary manifestations of anti-Semitism are not widely known or understood, and therefore not readily identifiable, by the Department of Education or otherwise. Contrast the above example with a posted image of a hangman’s noose dangling from a tree, one of the most notorious and reviled symbols of anti-black racism and violence, albeit a form of protected expression. The Department would have no trouble recognizing the latter as evidence of anti-black hostility, and considering it as part of a civil rights investigation. However, the extent to which a manifestation of hatred or bigotry is easily recognizable as such does not diminish its impact on the group it targets, nor the message it is intended to convey. It is precisely because expressions of anti-Semitism are often not as distinguishable (as are equally hateful expressions targeting other protected groups) that elucidation and clear definition are so desperately necessary. At the end of the day, for the Department of Education to fulfil its mandate and safeguard students of all backgrounds nationwide, it must be equipped to competently and effectively identify when those students are being targeted based on their innate characteristics.

Finally, and as previously mentioned, consideration of speech and expression is commonplace, proper, and highly relevant in numerous civil and criminal actions where a certain intent must be shown in order for liability to attach. In such situations, it is the duty of the federal government to apply and enforce the laws consistent with the U.S. Constitution. While the government could, in theory, apply any law in an unconstitutional manner, there are simply no grounds for assuming that a facially constitutional law will be applied improperly. Indeed, if the government entity does apply a law in a way that violates the constitutionally protected right of an individual, the individual can sue the government entity to ensure proper protection of that right. Put simply: We must equip the Department with the necessary information to protect Jewish students on American college campuses, and we must expect that the Department will use its power properly and appropriately to advance that goal, without exceeding its authority and violating the rights of any others.

Moreover, the suggestion that the AAA will somehow lead to First Amendment violations seemingly ignores (or results from a misunderstanding of) how Title VI can be enforced by the Department of Education. If it is determined that a hostile environment exists (again, already a high burden of proof), and that the academic institution at issue has failed to properly address the situation, then the Department may withhold federal funding from that institution. That is, the Department itself simply has no authority whatsoever to silence speech. Further, in evaluating the sufficiency of the institution’s response, the Department looks to whether or not the institution took appropriate steps to ensure that student members of the targeted group are able to participate in and take advantage of academic opportunities in the same manner as all other untargeted students. Essentially, in the present context, the Department will examine whether an institution’s handling of a hostile situation conveys to Jewish students that their campus environment is safe and welcoming to them. In no way does the Department’s process, per Title VI, empower or direct academic institutions to silence speech, even when that speech is identified as a component of an unlawfully hostile climate. Indeed, it is incumbent upon these institutions to assiduously preserve the freedom of speech on campuses, including in their compliance with Title VI.

The suggestion that the Department of Education will violate students’ rights, as opponents of the AAA intimate, flies in the face of the constitutional norms upon which this country was established. In assessing the importance and magnitude of the adoption of the AAA, we must look at the benefit it will bring to those whose rights are being violated, and not to its potential (and unlikely) unconstitutional application.

Jewish students around this country are being silenced, harassed, intimidated, and even assaulted for being Jews and for believing in Jewish self-determination. They are being punished and maligned not only by other students, but by faculty and administrators who attribute the politics and policies of a government thousands of miles away to American Jews who come to college to learn and engage. If a Chinese student encountered similar harassment by individuals who were claiming to protest the policies of China, or its occupation of Tibet, the Department of Education would not need a definition of racism to properly apply Title VI. This harassment would rightfully be deemed bigoted and discriminatory, not “political”, and no one would suggest that it could not be considered in assessing the existence of an environment hostile toward Chinese students.

When Jewish students, however, deal with such harassment on a daily basis on campuses nationwide, the response from faculty and administrators on campus is reversed. Jews and supporters of Jewish sovereignty and self-determination are held accountable for the policies and politics of the Israeli government, in a way that would be (and should be) harshly condemned if aimed at any other religious or ethnic group. While this type of hateful speech must be protected under the First Amendment, it must also be considered in any thorough analysis of the environment that exists for victimized students—especially when state actors (i.e., faculty and administrators) oversee, facilitate, ratify, or engage in the same speech themselves.

In order to rectify a situation in which third parties are engaging in such vile expression, faculty and administrators could simply assure Jewish students that they are welcome on campus; that there are resources available to them; that they are entitled to the same benefits, privileges, and opportunities as all other students on campus; and that the institution will protect them and their inalienable rights, especially in the face of those who wish to deny them. When the institution responds appropriately to anti-Jewish animus—even while protecting the reprehensible speech of those targeting and maligning Jews—a violation of Title VI will not be found.

Moreover, while the debate surrounding adoption of the AAA has centered on the silencing of anti-Jewish and anti-Israel speech, the reality on campuses is that it is Jewish and pro-Israel speech that has been persistently and sometimes violently censored.

As the world’s only legal fund providing pro bono representation to the Jewish community, and as Plaintiffs’ co-counsel in the groundbreaking civil rights lawsuit against San Francisco State University on behalf of Jewish students and community members who face rampant violations of their constitutional and civil rights, The Lawfare Project is uniquely qualified to weigh in on the importance of the adoption of the State Department definition of anti-Semitism by the Department of Education. Since the filing of the lawsuit against San Francisco State University, an alarming number of Jewish students—from across the United States and at all levels of education—have contacted The Lawfare Project regarding the anti-Semitism permeating their schools. It is all too apparent that the Department of Education has been hamstrung without a definition of anti-Semitism, and that the adoption of such a definition will help with Title VI enforcement, while protecting free speech and ensuring academic environments provide the same benefits, privileges, and opportunities to allstudents on campus, regardless of their protected class.

Benjamin Ryberg