Can Civil Rights Law End Antisemitic Discrimination?

With a nod to Maimonides, Harvard Law’s Benjamin Eidelson and University of Virginia’s Deborah Hellman have published a draft article offering a “Guide to the Perplexed” regarding “Antisemitism, Anti-Zionism, and Title VI.” That law is the Civil Rights Act provision authorizing private litigants and the federal government to sue universities for discrimination. Whether anti-Zionism is anti-Semitism—always, never, theoretically but not practically, or some other relationship—dominates the discourse about campus demonstrations because it is generally thought that the latter but not the former implicates Title VI. Mere anti-Zionism is allegedly acceptable political discourse while antisemitism is bigotry. Accordingly, anti-Zionist campus demonstrations are sacrosanct free speech unless they “cross the line” into prohibited discriminatory harassment based on national origin.

The authors aim to show that it’s far more complicated. Antisemitism litigation against universities “face[s] formidable hurdles” first and foremost because civil rights law—at least on its face—only prohibits certain forms of antisemitism. It’s perplexing indeed.

Perplexing but moot, that is. Discrimination against Israeli nationals is prohibited under Title VI. No one disputes that, and that is all the government would have to show in order to strip a university of federal support. The hoopla over Eidelson’s and Hellman’s article, though, is about its analysis of contemporary anti-Zionism, and whether it fits into the narrow categories of antisemitism prohibited under civil rights law.

It is shocking that it is not obvious to the authors (and presumably their editors and readers) that contemporary anti-Zionism fits to a tee their description of what would qualify as prohibited national-origin discrimination. Yet it does not occur to them to make the argument that beneath the surface of anti-Zionist rhetoric is a movement with a philosophy predicated on certain discriminatory ideas about the nature of the conflict between Israelis and Palestinians. If two highly educated and thoughtful professors suffer from such a blind spot, the error is not really theirs.

Culturally, we have clearly focused on parsing phrases like “globalize the Intifada” at the expense of actually understanding the logic of contemporary anti-Zionist fervor. Forget particular chants and theoretical rhetoric, though: What are anti-Israel activists conveying to an objective listener at an irreducible level? What do they want, and why?

Destroying Israel is nothing short of an obsession among a cohort of young progressives. Yet it’s not always clear why students destroy their own library while disrupting exam prep in service of the anti-Israel cause and no other. Graduates don’t lie to administrators about the content of their valedictory addresses for the looming climate catastrophe. Nobody pours cement down Columbia’s toilets in protest of welfare cuts. Nor is it always clear why anyone off campus ought to care about what appears to be a he-said-they-said of offense-taking. Maybe these are just college kids taking offense at their subjective interpretations of arguably hurtful words, with “discriminatory harassment” serving as an anti-speech cudgel. But the anti-Israel movement has a philosophy whose substantive content doesn’t just put to rest Eidelson’s and Hellman’s challenge; it helps answer all those questions.

Eidelson’s and Hellman’s main contribution to the discourse is arguing that it is not clear that Title VI applies to all forms of antisemitism. Rather, “Title VI recognizes Jewishness only as a racial or ancestral category.” In other words, antisemitism with a religious inflection (“Christ-killer!”), that which taps into derogatory stereotypes (“cheap Jew!”), or devoid of content aside from hostility (“shut up, Jew”) may not count. But holding an event closed to “Ashkenazim,” Jews of European descent, would be a Title VI violation.

The authors think that whether garden-variety campus anti-Zionism implicates ancestral Jewishness is a difficult question. They identify some narrow circumstances in which anti-Zionism could manifest in racial or ancestral terms:

The most we can usefully say is that anti-Zionist acts of exclusion or “shunning” on campus could add up to a racially hostile environment if, but only if, they amount to severe and pervasive harassment even once the set of relevant instances is restricted to those in which (a) an intent to exclude students of Jewish ancestry motivates the exclusion, or (b) it is a student’s perceived Jewish ancestry that grounds an inference about their views regarding Israel. Exclusion of Zionists per se would not suffice.

There is a (c) that can be hard to see, but not because it is well-hidden; only because (and this is the scandal) we are not used to talking about what anti-Zionism is. Contemporary anti-Zionism, the view that the Jewish state of Israel should one way or another cease to exist, in all but the rarest of circumstances takes a form that denigrates Jews on the basis of their shared heritage. More specifically, it necessarily entails telling Jews that their shared heritage is a lie propagated for nefarious purposes but belied by the color of their skin. Today’s anti-Zionism relies on a perception about a Jew’s ancestry—that it is fraudulently concocted—combined with an observation about Jewish racial characteristics.

How such discrimination manifests, and its glaring ancestral-racial qualities, is clear, objective, and inescapable. My own experience as a “visible Jew” illustrates just how.

When I was a law student living on Manhattan’s Upper West Side, I would take the subway to NYU Law’s downtown campus every weekday. Dozens of times over those three years, vagrant straphangers who saw my yarmulke would stand over me and preach—rant is the better word—to the rest of the car about who I really was and the perfidies my people had committed against theirs. These representatives of Black Hebrew Israelites or similar groups announced that white-looking Jews like me are not the real Jews. Rather, Ashkenazi Jews are white usurpers, enslavers, interlopers who lie about their heritage to garner sympathy and extract land and resources from indigenous peoples. We pretend to be heirs to the ancient Israelites, when the real inheritors of the land, tradition, and honor of that people are people of color who pretend-Jews like me oppress to complete our Big Lie. My ancestors apparently did this to black people worldwide. And Jews like me were still fraudsters and poseurs today.

This is easily recognizable as a kind of discrimination based on my ethnic heritage, real and perceived. It directly implicates my lineage as an Ashkenazi Jew by denying that I am descended from Levantine Israelites, singling me out for derision on that basis. It denies Jews the right to self-define as an ethno-religious group. My harassers preferred a conspiracy theory that underscores the Jews’ profound evil. They tell me that I am a fraud and a phony for claiming to be Jewish (real ancestry) while being white (perceived ancestry).

Yet, as I have quipped ever since, I would get off the subway, arrive at NYU Law, and promptly hear the same accusations, only leveled in more sophisticated language. Campus anti-Israel activism is now overwhelmingly “decolonial,” reliant on the claim that Jews are not the rightful sovereigns over Palestine because they are not indigenous. It is therefore eliminationist; the proper outcome is for the colonizers to get out, like the French in Algeria.

My classmates who claim that Israel, alone among the nations of the world, should be dismantled and replaced with a sovereign representing a different ethnic group constitute one kind of singling out. But there was quite another beneath the surface. Israel had to be eliminated, not reformed or compromised with, because it displaced a native population with an exclusive claim to the land. My fellow Jews were aghast. How can educated people say that Jews have no claim to that territory? Education is little defense against just-so conspiracy theories: Sure, ancient Jews lived there before Christian and Muslim Arabs did; but today’s Jews are not the same group, which we know because Jews are white. The position that distinguishes the anti-Zionists from the mere Israel-critics is thus predicated on a profound act of ethnic prejudice: claiming that the Jews who are currently sovereign in Israel are not who they claim to be. In other words, that Ashkenazi Jews (who make up a minority of Israel’s population and only part of its governing coalition) have manipulated, faked, or otherwise fabricated their ethnic heritage in order to steal land from Arabs. It’s subway-rant stuff.

Every time Israel is referred to as “settler-colonial,” the logic of the subway rant is baked in. It simply does not compute without the premise that today’s Jews are not who they claim. When student activists claim that a Jewish state in the Levant is unacceptable because it displaces the true indigenous people with white Europeans—precisely, if not explicitly, the most common form of anti-Zionism today—Jews are being told that they are not who they claim they are. It is per se discriminatory, against Israelis and Jews, on the basis of their real and perceived ethnic heritage, a conspiracy theory like nearly every form of antisemitism.

Seeing that does not require searching for ill motives or intent. It just requires thinking about the ideas being expressed rather than just the words. In other words, we should apply civil rights law to objective discrimination rather than merely explicit discrimination. Our legal standards should take anti-Zionism seriously on its own terms. If civil rights law cannot account for objective but thinly hidden forms of precisely the discriminatory harassment it exists to prevent due to a euphemism loophole that allows favored causes to avoid consequences for advancing a discriminatory movement, then it is not clear what benefit there is to a massive civil-rights enforcement apparatus and expensive campus compliance regimes. 

Once we focus on its objective and unavoidable positions, some apparent mysteries about the campus anti-Israel movement seem much less perplexing. Those who take it on do not think they are participating in a garden-variety political dispute. They are not trying to persuade their fellow students, or anyone else, of the rightness of their position. Nor could they, though they often recur to defensible arguments about Israel’s war conduct, treatment of Palestinians, or other governance issues. Those arguments are not the point, and the tenor of the “debate” over the Middle East would be entirely different if it were; the point is for someone other than Jews to be sovereign over the land that now constitutes Israel. And that is not the kind of position ripe to be advanced through reasoned argument. It can only be accomplished by intimidation, coercion, and misdirection.

Students at Columbia, Harvard, and other elite schools set up encampments in violation of school rules, break into buildings, and deploy any number of other unpopular tactics because they are not trying to persuade. Ask any radical campus group and they will tell you: they are following the lead of the “resistance,” Iran and its terrorist proxies, to make support for Israel anathema among the next generation of Americans. Apparently, Hamas made a habit of telling Israeli hostages the same.

Campus militants make little effort to hide the discriminatory logic of their cause. They count on academics and judges not seeing it for what it really is: A vile antisemitic conspiracy theory about Jews faking their heritage in order to steal from oppressed indigenous people. That is not just a flagrant Title VI violation. It’s an embarrassment to our institutions of higher learning, which have refused even to understand what the demonstrators stand for, and to our nation.