What is antisemitism? It’s easy to think of a colloquial definition — hatred and bigotry directed against Jews — but it’s much harder than you might think to define it legally. It doesn’t fit neatly into existing federal anti-discrimination law.
This legal ambiguity is especially problematic when our nation is facing what President Biden called a “ferocious surge” in antisemitism. This year, the Anti-Defamation League reported a 140 percent increase in antisemitic incidents in 2023 compared with 2022 — and 2022 was already a record year. The crisis on college campuses was particularly acute. According to the ADL, the number of antisemitic incidents on campus tripled in 2023.
Acting with surprising consensus, the House of Representatives has responded. Last week, the Antisemitism Awareness Act, a bill intended to protect Jewish students from discrimination on campus, passed with broad bipartisan support. The law is motivated by good intentions in support of a necessary purpose, but the bill itself is deeply flawed. Those flaws aren’t fatal, but they need to be addressed in the Senate.
To understand what’s good about the act, it’s necessary to understand the legal ambiguities that now exist on campus. “No person in the United States,” Title VI of the Civil Rights Act of 1964 states, “shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” There is no corresponding federal prohibition on discrimination on the basis of religion.
The problem is immediately obvious. Jewishness doesn’t fit neatly into any of those three categories. Israelis of all races, religions and ethnicities are protected because of their national origin, but what about American Jews? Judaism is a religion, and religion isn’t covered. Jewishness is more of an ancestry than a “race” or a “color” — there are Jews of many races and colors.
Both the Trump and the Biden administrations attempted to solve the problem by interpreting Title VI to apply to antisemitism, at least in some circumstances. The Trump administration issued an executive order stating that “discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color or national origin.” Biden’s Department of Education has interpreted Title VI to apply when students “experience discrimination, including harassment,” on the basis of their “shared ancestry or ethnic characteristics.”
