Opinion | A Simple Fix for the Antisemitism Awareness Act - The New York Times - 0 views
www.nytimes.com/...emitism-awareness-act-fix.html
anti-Semitism law interpretation act policy politics
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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.
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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.
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There is an answer to the problem. Congress should pass legislation clearly stating that antisemitism is included in the scope of Title VI.
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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.”
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Executive orders and administrative regulations are more ephemeral than federal statutes. The next president (or one elected in 2036 or 2052) may choose to interpret Title VI differently. Biden’s interpretation is broader than Trump’s, for example. Courts will also have their own say, and they are now less deferential to presidential interpretations of the law than they’ve been in decades.
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The definitions don’t just implicate the First Amendment, they also breed confusion around the very concept of harassment itself. Hearing unpleasant or even hateful thoughts or ideas isn’t “harassment.”
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The best parts of the Antisemitism Awareness Act explicitly incorporate discrimination based on “actual or perceived shared ancestry or ethnic characteristics” into federal statutory law, elevating the legal protections well beyond the executive orders and guidance letters of previous administrations.
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If the law had stopped there — or even if it had gone further and explicitly stated that discrimination on the basis of actual or perceived Jewish identity is by definition discrimination on the basis of shared ancestry, then it would be a vital addition to federal law.
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But the law did not stop there. It goes on to require schools to consider the International Holocaust Remembrance Alliance’s working definition of antisemitism when determining whether there has been a violation of Title VI
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This is a serious mistake. The alliance’s definition includes examples of antisemitism that encompass a broad range of statements that are protected by the First Amendment.
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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.”
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In a 1999 case, Davis v. Monroe County Board of Education, the Supreme Court defined student-on-student harassment under Title IX (the federal statute prohibiting sex discrimination in federally funded education) as conduct “so severe, pervasive and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.”
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Harassment doesn’t depend so much on the content or viewpoint of the objectionable speech as where, when and how it happens.
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If they shout down Jewish students in class using the same phrase, or chant it outside the dorm rooms of Jewish students at 3 a.m., then they’re engaging in harassment. Jewish students can’t study or sleep on an equal basis with other students.
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In both of those circumstances, the actual content of the words is less important than the timing and the targets. A person can commit an act of antisemitic harassment if he targets Jewish students with words that have nothing to do with ancestry or ethnicity
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For example, if someone stands outside a Jewish student’s room night after night yelling, “Michael Jordan is the GOAT” relentlessly so that the student can’t sleep or targets her Jewish roommate with constant interruption and distraction then she’s engaging in antisemitic harassment not because of the content or viewpoint of the words, but rather because of the identity of the target and the time and manner of the speech.
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I’d like to humbly offer a better way. Strip the problematic incorporation of the alliance’s antisemitism definition and examples from the bill entirely. Instead, simply amend Title VI itself to make it explicit that discrimination based on “actual or perceived shared ancestry or ethnic characteristics” is prohibited by the statute and that antisemitic discrimination meets that definition.
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by revising Title VI to clearly prohibit discrimination against Jews without any further amplification or definition, antisemitic harassment will fit neatly into existing case law that has longed harmonized free speech principles and nondiscrimination law