Biden Administration’s plan to address anti-Semitism includes censorship

The first part of this series provides analysis of the provisions in the Biden Administration’s “U.S. National Strategy to Counter Antisemitism” that address anti-Semitism in the context of education. This second part analyzes the proposal’s plan to combat anti-Semitism in pop culture.  The final installment will analyze the free speech implications of the Biden Administration’s plan to address anti-Semitism online.

Late last month, the Biden Administration issued “The U.S. National Strategy to Counter Antisemitism.” The document sets forth the administration’s broad strategy to fight anti-Semitism in several contexts, including in education, sports, pop culture, and online. It describes what the administration plans to do and makes requests of entities outside of its direct control like state and local governments and private actors. 

Anti-Semitism, like other forms of bigotry, is a festering problem in the United States that should be addressed with a comprehensive plan. FIRE applauds efforts to combat prejudice that rely on education and dialogue while cautioning against approaches that rely on, or invite, censorship. 

To the plan’s credit, it includes strategies that promote dialogue. For example, with the express purpose of facilitating dialogue, it calls on U.S. Attorney Offices, FBI Field Offices, DOJ Community Relations Service members and others to “undertake targeted engagement with community-based groups including youth, faith leaders, cultural leaders, and civil rights organizers from Jewish communities and other communities victimized by hate crimes.” It also declares, “As we confront antisemitism, we do so with profound respect for our democratic traditions, including free expression and speech protected by the First Amendment.”

Unfortunately, however, the plan includes several calls for censorship. 

This three-part series will analyze aspects of the plan that implicate expression, with this first part covering the plan’s provisions about addressing anti-Semisitm in education. The second installment will cover how the plan addresses anti-Semitism in pop culture. The third and final post will focus on how the plan proposes tackling anti-Semitism online.

Combating anti-Semitism in education

The Biden plan states that the Department of Education “will launch an Antisemitism Awareness Campaign, aimed at raising awareness among educators, students, parents, and communities about the alarming rise of antisemitism and giving them tools to address it.” 

While there is nothing problematic about this strategy on its face, we are concerned that some of the “tools” the Department will promote will lead to censorship. Civil liberties advocates have good reason for concern. On May 25, coinciding with the release of the administration’s plan, the Department issued a “Dear Colleague” letter on anti-Semitism in which it uses an unconstitutional standard of what constitutes student-on-student harassment:

[The Department of Education’s Office for Civil Rights] generally finds that a hostile environment exists where there is harassing conduct that is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities, or privileges provided by a school.

The footnote supporting that assertion cites the Supreme Court’s standard on student-on-student harassment from Davis v. Monroe County Board of Education, but the Davis definition is substantially different. In Davis, the Supreme Court defines student-on student harassment as discriminatory conduct that “is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

The differences in the two definitions are profound in their impact. For example, the definition used in the DCL has no requirement that the conduct be objectively offensive. If this overbroad and entirely subjective standard is the kind of “tool” the Department plans to give educators to address anti-Semitism, there is significant reason for alarm. Our concern is not speculative, given the May 25 DCL and OCR’s history of promoting subjective definitions of harassment during the Obama administration, when the Department was last led by Catherine Lhamon, as it is again now.

While the reliance on an overbroad definition of student-on-student harassment creates a serious constitutional problem, one positive aspect of the plan worth noting is its characterization of the International Holocaust Remembrance Alliance’s definition of anti-Semitism as a “non-legally binding” tool to “raise awareness and increase understanding of antisemitism.”

One reason using the IHRA definition is unconstitutional in this context is it refers to clearly protected speech as examples of anti-Semitism.

FIRE has long raised concerns that the IHRA definition is inappropriate when used by college administrators in anti-discrimination policies, as the definition is vague and encompasses expression protected by the First Amendment. It is unconstitutional to use this definition as the measure by which administrators decide whether speech may be punished. 

One reason using the IHRA definition is unconstitutional in this context is it refers to clearly protected speech as examples of anti-Semitism. For instance, it deems comparing contemporary Israeli policies to Nazi policies as, de facto, anti-Semitic. FIRE, of course, takes no position on the Israeli-Palestinian conflict, but there is no question the First Amendment protects the right to compare any country’s policies to those of the Third Reich. FIRE, therefore, objects to the IHRA definition’s use in school disciplinary procedures, but, we do not oppose its use as a tool to “raise awareness and increase understanding of anti-Semitism,” as described by the Biden plan. 

The next installment will explore the free speech implications of the Biden Administration’s plan to address anti-Semitism in pop culture.