UPDATE, 12/11/19: The text of the executive order is now publicly available. The order directs federal agencies charged with enforcing Title VI to “consider” the IHRA definition of anti-Semitism and its accompanying examples, both of which may apply to core political speech protected by the First Amendment. While the order is couched in language intended to paper over the readily evident threat to expressive rights, its ambiguous directive and fundamental reliance on the IHRA definition and its examples will cause institutions to investigate and censor protected speech on their campuses. Having spent 20 years defending speakers from across the political spectrum, FIRE knows all too well that colleges and universities will rush to punish student and faculty speakers in an attempt to avoid federal investigation and enforcement.
According to news reports, President Trump will sign an Executive Order directing the Departments of Education and Justice to employ a specific definition and examples of anti-Semitism in evaluating institutional responses to alleged violations of Title VI of the Civil Rights Act. If true, the Executive Order would threaten freedom of expression on campus.
Adopted by the U.S. Department of State and later in expanded form by the International Holocaust Remembrance Alliance, the definition and examples reach core political speech protected by the First Amendment. Directing federal agencies to rely on this framework in enforcing Title VI would effectively order nearly every campus in the country to censor its students and faculty on the basis of viewpoint—in this case, constitutionally protected speech that is critical of Israel. (The vast majority of American campuses, public and private, receive federal funding and would be subject to the order.) This result would be sharply at odds with our national commitment to freedom of speech and academic freedom, decades of First Amendment precedent, and the President’s stated concern for protecting free speech on campus.
Since 2015, FIRE has repeatedly warned of the threat to campus speech rights posed by legislative efforts to require government agencies and campus administrators to employ this definition when responding to allegedly discriminatory harassment. FIRE has been joined in our opposition by other civil liberties advocates and even by the definition’s lead author.
The apparent rise in campus anti-Semitism is a real problem. But however well-intentioned, if the President’s Executive Order does in fact rely on this definition, it will impermissibly threaten the expressive rights of students and faculty at institutions across the country.
FIRE supports legislative efforts to include religion as a protected class at institutions of higher education. Doing so would better equip institutions to respond to anti-Semitic harassment and protect students of all religions subjected to harassment because of their faith.
FIRE will defend students and faculty subjected to censorship as a result of the implementation of the Executive Order, and we hope to work with lawmakers on constitutional alternatives to combat unlawful harassment.