Yesterday, the Anti-Semitism Awareness Act, a problematic bill co-sponsored by Senators Tim Scott and Bob Casey, cleared the Senate on an uncontested voice vote, on the same day the bill was introduced in Congress.
The bill would require the Department of Education to “take into consideration” the definition of anti-Semitism used by the Department of State when “reviewing, investigating, or deciding whether there has been a violation of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) on the basis of race, color, or national origin, based on an individual’s actual or perceived shared Jewish ancestry or Jewish ethnic characteristics.”
The State Department’s definition of anti-Semitism provides: “Anti-Semitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” Last year, FIRE argued that adoption and enforcement of this definition would likely violate the First Amendment on public college campuses.
While the bill does include a First Amendment savings clause in Section 5, the definition itself is riddled with vagueness and overbreadth problems. Most obviously, the phrase “a certain perception of Jews” is so vague that consensus on what it means in practical terms would be impossible to achieve. A statute or regulation is void for vagueness when citizens “must necessarily guess at its meaning.” Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (internal citations omitted). Such a result would be inescapable here.
Moreover, expressing hatred of a group on its own is also protected expression. Expressions of “hatred” only lose their protection when they constitute incitement, a true threat, intimidation, or actionable harassment, which in the educational context is best understood by reference to the standard set forth by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
Troublingly, the legislation goes even further by incorporating examples of anti-Semitism included in the State Department’s fact sheet. Those examples declare that both Holocaust denial and “[d]rawing comparisons of contemporary Israeli policy to that of the Nazis” constitute anti-Semitism. Whether such speech is anti-Semitic or not is beside the point, as both types of expression are clearly protected by the First Amendment, and neither can be punished by a government agency (including a public university).
It’s important to remember that the Department of Education’s Office for Civil Rights (OCR) has already made clear in a 2010 “Dear Colleague” letter that anti-Semitic harassment may be prohibited under Title VI when it occurs “on the basis of actual or perceived shared ancestry or ethnic characteristics.” OCR issued similar guidance in a 2004 “Dear Colleague” letter. Additionally, Title IV of the Civil Rights Act of 1964—which, unlike Titles VI and IX, is enforced by the Civil Rights Division of the Department of Justice instead of OCR—prohibits religious discrimination in public colleges and universities.
FIRE shares the Senate’s determination that combatting anti-Semitism that creates a hostile environment is important, just as we believe that it is important to combat hostile environment harassment, properly defined, against people of other faiths and ethnicities. All such efforts, however, must respect the First Amendment. We are concerned, therefore, that the State Department’s definition of anti-Semitism is unconstitutionally vague and overbroad, and we think it is unlikely to be upheld if challenged in court.
FIRE is monitoring the legislation closely.