President Trump’s executive order targeting anti-Semitism on American college campuses is the wrong solution to a pressing problem. There is little doubt that in recent years, anti-Semitic incidents on campus have risen at an alarming rate. But in fighting such bigotry, we must always be mindful of the free-speech rights of college students and faculty. Both the Constitution and the president’s prior executive order aimed at protecting free speech on campus require it.
The “Executive Order on Combating Anti-Semitism” requires the Departments of Justice and Education, the federal agencies responsible for enforcing Title VI of the Civil Rights Act of 1964, to “consider” the International Holocaust Remembrance Alliance’s definition of anti-Semitism: “a certain perception of Jews, which may be expressed as hatred toward Jews.” The definition’s primary author, Ken Stern, has repeatedly opposed its use in the campus context because of the clear threat it poses to constitutionally protected expression.
What is that threat? For starters, the definition is impermissibly vague. What does it mean to have “a certain perception of Jews?” It could mean many different things to many different people, which presents an obvious problem: When rules that will predictably be used to limit speech are so vague that they do not give a person of reasonable intelligence notice of what is prohibited, then those people decide to self-censor, wary of finding themselves on the wrong side of an imperceptible line. It’s what courts call a “chilling effect” on speech, and it’s why vague regulations are struck down by the judiciary as violations of the First Amendment. There is a reason the IHRA definition was developed to track incidents of anti-Semitism internationally and not to regulate on-campus speech and debate.
The order also requires agencies to “consider” the IHRA’s examples of anti-Semitism, which include “denying the Jewish people their right to self-determination” and “drawing comparisons of contemporary Israeli policy to that of the Nazis.”
But like the definition itself, these examples directly implicate protected speech. There is no question that the First Amendment protects a student’s comparison of Chinese Uighur camps to Nazi concentration camps. The same goes for comparisons of Syrian, Russian, or even U.S. policies to those of the Nazis. Similar criticisms of Israel and Israeli policy toward Palestinians, accurate or not, also enjoy constitutional protection. Under the new executive order, students and faculty must be cautious about criticizing Israel in ways that they could permissibly criticize any other country. This is unlawful viewpoint discrimination under long-standing First Amendment jurisprudence.
Proponents of the order argue that its direction not to “diminish or infringe upon any right protected under Federal law or the First Amendment” provides a sufficient safeguard against censorship. But that’s akin to closing the barn doors after the horses are a mile down the road. Simply gesturing in the direction of First Amendment rights at the end isn’t enough to fix an unconstitutional policy.
What’s more, there is a massive financial incentive for universities to err on the side of censorship over the right to free speech. They risk losing millions of dollars in federal funds if an agency finds that they did not sufficiently respond to incidents of anti-Semitic speech on campus. We know how this goes: Under the Obama administration, we saw the same perverse incentives play out in the systemic dismantling of due-process protections for students accused of Title IX violations.
President Trump declared in another executive order in March that it is the policy of the federal government to “encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate.” The language in the anti-Semitism order is squarely at odds with this prescription; it will discourage open debate of issues relating to Israel and Israeli policy, and place one side’s political opinions above another’s.
There is also the question of why the administration is trying to define anti-Semitism at all. Federal agencies responsible for fighting discrimination on campuses don’t define racism, sexism, or any other -ism. They’re supposed to prohibit discrimination against protected classes, which allows them (and courts) to determine whether, under the totality of the circumstances, an individual has been the target of discriminatory harassment. The order does the first part well: It reiterates longstanding Department of Education policy finding that Jewish students are protected by Title VI for anti-discrimination purposes. But the ensuing definition and list of examples from the IHRA leave much to be desired.
The use of the IHRA’s definition is already threatening students’ speech rights. Students citing the definition have already threatened to file federal complaints against fellow students and faculty alleging Title VI violations if universities don’t censor the latter’s speech. At the University of Minnesota, pro-Israel groups threatened to file a federal complaint if the university didn’t cancel a pro-Palestinian conference that was to be held on campus. Students at UC Berkeley filed a complaint because, at a vigil honoring victims of a synagogue shooting, some wanted to also honor three children killed by an Israeli missile strike in Gaza. They argued that such a gesture would constitute prohibited anti-Semitism under the IHRA definition, which even if true is beside the point, because it would also constitute protected speech under the First Amendment.
There’s a constitutional answer to the problem of anti-Semitism on campus. Congress could protect Jewish students from discriminatory harassment by passing a law including religion as a protected class under Title VI. The United States Supreme Court held in Davis v. Monroe County Board of Education that student-on-student conduct rises to the level of discriminatory harassment when a student from a protected class is targeted based on membership in that class, and when that conduct is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Such a formulation would ensure that Jewish students are protected for Title VI purposes without infringing on constitutionally protected speech.
President Trump should be applauded for taking anti-Semitism on campus seriously, but the First Amendment cannot be sacrificed in the process. The executive order will certainly be used to punish constitutionally protected speech, and should be revised or rescinded accordingly.