Oppose the Antisemitism Unawareness Act
The reintroduced Antisemitism Awareness Act, which would be more accurately titled the Antisemitism Unawareness Act, is a step backward in the fight against antisemitism. Unfortunately, the House passed the latest incarnation of the Antisemitism Awareness Act, H.R. 6090, on May 1, 2024. It is now up to the Senate to ensure that S.3141 does not become law.
This is the latest version of a bill that has been introduced but failed to pass in previous sessions of Congress but keeps coming back like something out of a bad vampire movie. This time, sponsors are hoping to play on our legitimate emotions and fears about antisemitism on college campuses, especially since the Hamas terror attack against Israel on October 7.
In opposing this legislation, Rep. Jerry Nadler (D-NY) said on May 1 that “this legislation threatens freedom of speech, one of our most cherished values, while doing nothing to combat antisemitism.” This legislation is a misguided political stunt, as Rep. Sean Casten (D-IL) explained in this May 2 thread following the House vote
On February 6, 2024, the ACLU raised free speech concerns when it urged the Department of Education not to use the International Holocaust Remembrance Alliance’s non-legally binding working definition of antisemitism (the IHRA definition) to enforce civil rights law, including Title VI.
On April 26, 2024, the ACLU urged Congress to oppose the Antisemitism Awareness Act because enshrining the IHRA definition into regulation would chill the exercise of First Amendment rights and risk undermining the Department of Education’s legitimate and important efforts to combat discrimination. The IHRA definition equates protected political speech with unprotected discrimination. It’s the wrong standard for the Department of Education to use.
The fundamental problem with every version of the Antisemitism Awareness Act that has been introduced over the years is that it requires the Department of Education to take into account the IHRA definition in determining antisemitic intent — exactly what the ACLU warns against. But the IHRA definition is, as David Schraub wrote, “vague to the point of incoherency, and riddled with so much imprecision and hedging that it could justify labeling anything or nothing anti-Semitic.” According to the IHRA definition, everything depends on context, which means that anyone who can’t identify antisemitism without the IHRA definition will not be able to identify antisemitism with the definition. It cannot stand on its own.
The latest version of the Antisemitism Awareness Act mentions President Biden’s National Strategy to Counter Antisemitism and implies that the Act’s goal is to further the aims of the strategy, but it undermines the strategy by referencing only the IHRA definition. The National Strategy has a better definition and notes that “there are several definitions of antisemitism, which serve as valuable tools to raise awareness and increase understanding of antisemitism. The most prominent is the [IHRA definition], which the United States has embraced. In addition, the Administration welcomes and appreciates the Nexus Document and notes other such efforts.” But the Antisemitism Awareness Act neither notes nor welcomes the Nexus Document or other efforts.
Ken Stern, the lead drafter of the IHRA definition, explained on June 9, 2023, why the IHRA definition should not be adopted and why the administration was correct in not doing so — and in intentionally not relying solely on the IHRA definition even as a tool.
The Administration created its own definition and noted that the IHRA definition is one of several tools for good reasons. The Antisemitism Awareness Act’s reliance on only one tool, which didn’t make sense even when other tools did not exist, makes even less sense in this iteration when other, better tools have been created in response to the IHRA definition’s deficiencies. This same logic applies to any legislation that references only the IHRA definition, which is like eating a stale banana when you have a bunch of better bananas right in front of you.
When IHRA was drafted, the Jerusalem Declaration on Antisemitism, the Nexus Document (referenced by name in Biden’s National Strategy), and T’ruah’s Very Brief Guide to Antisemitism did not exist. All were created in part to address the problems with the IHRA definition. It makes no sense for any legislation to solely reference the IHRA definition unless for the drafters of the legislation, the deficiencies of the IHRA definition are features, not bugs.
The IHRA definition isn’t the gold standard, but for several years it was the only standard. That’s part of the reason it gained momentum and why some people support it despite its flaws: like Mt. Everest, it is there. The IHRA definition is the VHS or Word of antisemitism definitions. VHS won over Beta, and Word won over Wordperfect not because VHS and Word were better, but because they gained critical mass early.
For more on the IHRA definition’s inherent flaws, read For the IHRA Definition, Context is Everything.
Legislation introduced in Congress or anywhere else should not solely reference an outdated definition that cannot stand on its own and that raises First Amendment concerns. The Antisemitism Awareness Act is a well-intentioned but misguided attempt to address antisemitism but it will only create unawareness at best and restrictions on legitimate speech at worst. We should oppose it. Instead, we should support the Countering Antisemitism Act, which would meaningfully address the serious antisemitism problems we must confront.
If you like what you’ve read, you might want to give my weekly newsletter a try. You can sign up for free here.
Last updated on May 2, 2024.
