Abstract

Excerpted From: Lili Levi, Politicizing Antisemitism Amidst Today's Educational Culture Wars, 27 Lewis & Clark Law Review 1185 (2024) (336 Footnotes) (Full Document)

Antisemitism--known as the oldest hatred --has been experiencing a global resurgence online and in the physical world, both in expression and action. Although antisemitic threats have reached “historic levels” since Hamas's attack on Israeli civilians on October 7, 2023 and the resulting Israel-Hamas war, troubling increases in antisemitism predate the responses associated with those events. Coded antisemitism has a storied past and continues to flourish, but even explicit antisemitism has been “going mainstream.” When hundreds of people armed with guns and lit torches chanted “Jews will not replace us” at a white supremacist rally and the then-president of the United States assured the country that there were “very fine people on both sides”; when a gunman murdered 11 worshipers at the Tree of Life Synagogue in America's most lethal antisemitic terror attack; when press reports of antisemitism-fueled attacks in the United States started to appear with frequency; when the COVID-19 pandemic generated conspiracy theories blaming Jews for the virus; when a celebrity with millions of fans praised Hitler in public; when a former president and prominent conservative politicians broke bread with modern Nazis; when some progressives decried Zionism in terms echoing antisemitic tropes; when youngsters faced daily exposure to unashamedly antisemitic TikToks; and when white nationalists manipulated the virality of online speech to amplify their messages, to serve as dog whistles for the already-converted, and to influence the views of new audiences, observers might have been forgiven for worrying about chinks in the traditional account of American exceptionalism as to Jews and antisemitism.

Even before October 7, 2023 and its aftermath, what appeared to be an increasing normalization of antisemitism in both American politics and culture made many Jews feel more at risk than they did a decade ago. If these trends continue, the future portends a growing otherization of Jews in the United States. But the threat goes beyond Jews. The shocking January 6, 2021 attack on the U.S. Capitol revealed the extent to which a large number of American citizens would accept the use of political violence in the service of anti-democratic electoral conspiracy theories. The visibility of antisemitism during January 6th and the strategic linkage between antisemitism and the broader project of white nationalism expose not just a threat against Jews, but a general menace to American democracy.

One key question is how best to confront the normalization of antisemitism in order to protect both Jews and American democracy. Elected officials have responded with rhetoric decrying the increase in antisemitism. In May 2023, President Biden unveiled the United States' first national strategy to combat antisemitism, which recommends speaking out about antisemitism as a key element in reversing its normalization. At the same time, antisemitism has become politically instrumentalized in today's polarized politics. Charges of antisemitism have been used as public relations tools, electoral strategies, political point-scoring, and justifications to advance goals far beyond responding to antisemitism. For years, Democrats have accused Republicans, including former President Trump, of hypocritically mainstreaming antisemitic tropes and flirting with white nationalism while simultaneously purporting to denounce antisemitism. In response, Republican politicians, including Trump, have castigated the Democratic party over what they have called the antisemitism of its progressive members' anti-Zionism. Political contention over antisemitism has only grown since.

It is against that backdrop that this Article addresses “anti-antisemitism” legal initiatives in the educational context. On the federal front, after Antisemitism Awareness bills addressing antisemitism on campus failed in Congress, then-President Trump issued Executive Order 13899 (Trump Executive Order) in 2019 to require executive departments and agencies to address charges of antisemitism on campus in their enforcement of Title VI of the Civil Rights Act of 1964, and to consider the definition of antisemitism adopted by the International Holocaust Remembrance Alliance (IHRA) in doing so. That order continues in place under the Biden Administration. States also addressed concerns expressed by Jewish groups about campus antisemitism. For example, in keeping with the Trump Executive Order, Florida amended its educational discrimination law to prohibit antisemitic discrimination, which it defined in ways closely inspired by the IHRA definition. Florida is also among a significant number of states that mandate Holocaust education.

This Article contends that such contemporary anti-antisemitism legal initiatives have not been particularly successful in countering rising antisemitism--and could even rebound to exacerbate antisemitism in practice. The attempts to protect Jews on campus through law are unstable and controversial on their own terms. The Antisemitism Awareness Act and the Trump Executive Order led to significant dispute, both within and outside the American Jewish community. While attacks on Jewish students and clashes between pro-Israel and pro-Palestinian protesters over the Israel-Hamas war have led to renewed attention to charges of campus antisemitism, the issue has triggered even sharper public debate over contending views of speech and student protest. As for state law, while the Florida antisemitism amendment to the Educational Equity Act did not trigger much public discussion, it too is open to criticism on its own terms. Indeed, aspects of the Florida legislation appear to go even further than the federal framework.

These educational anti-antisemitism initiatives risk politicizing antisemitism, allowing its use both as a tool in partisan political gamesmanship and as a weapon in substantive political fights over other issues. Conservative politicians have used concern about antisemitism on campus as part of a strategy to oppose what they see as progressive hegemony in higher education. But using antisemitism to advance the broader political project of controlling the “left-wing” academy does not directly confront the harms of the broader growing threats against Jews. To the extent that their enforcement is left to regulation and administrative discretion, uncertainty and variability are the most likely results-- undermining deterrence goals. When used to control speech alone, such enforcement can threaten American commitments to free expression. Furthermore, by adopting a particular definition of antisemitism, they choose among a variety of conceptions of antisemitism and put the government in the position of defining the details of both Jewish identity and discrimination based on religious affiliation. Without attacking the usefulness of the IHRA definition, particularly in many data-collecting and educative contexts, its incorporation as law in the United States raises additional difficulties in practice as well. The controversy the legal rules engender could also truncate public understanding of antisemitism by focusing on and effectively limiting it to the political--effectively making all antisemitism debatable. The politicization of antisemitism can all too easily submerge its moral valence.

More broadly, these anti-antisemitism statutes could well be on a collision course with today's strategic conservative reframing of education as a locus of the new “culture wars.” The articulated goals of these anti-antisemitism statutes can be undermined by today's virally-spreading conservative attacks on educational freedom and antiracist teaching. A variety of statutes--referred to as “educational gag orders,” “CRT bans,” “anti-CRT” bills, “backlash bills,” and “anti-woke” provisions--have swept the nation. In seeking to lead the fight to reform “woke indoctrination,” Florida has recently adopted legislation designed to limit instruction about “divisive concepts” such as race, racism, and gender identity in public education venues. Another front in the conservative attack on education and freedom of thought is the political strategy of book bans. Florida is again among a number of states that are removing books from library shelves to comply with the state's prohibitions on certain types of instruction, inter alia, about race.

To be sure, anti-CRT and educational gag order statutes are not aimed at Jews or anti-antisemitism projects. Their core targets are clearly African American-focused antiracist initiatives pushing America to confront the full legacy of its history of slavery, white supremacy, and institutional racism. Without seeking to distract from the harms of educational gag orders for the groups and ideas directly targeted, this Article argues that such harms are likely to extend beyond their original targets in practice. Specifically, the provisions may well also lead to censorship, inter alia, of critical explorations of Jewish history, the nature and meaning of antisemitism and antisemitic discrimination, and Jewish identities and intersectionality (e.g., Judaism and whiteness, Jewish LGBTQIA+ identity, the concerns of Jews of color, Judaism and gender). This concern is not merely hypothetical: the reactionary trend has already captured Jewish-focused work of Jewish authors, Holocaust literature, and award-winning plays about antisemitism and LGBTQIA+ issues.

Regardless of statutes mandating Holocaust education and purporting to protect Jewish students on campus, the only way that such provisions could realistically avoid the state's educational prohibitions would be through highly limiting individual-focused interpretations of antisemitic discrimination. But one core aspect of antisemitism is the purported power and deceitfulness of Jews as a group--indeed a cabal--already controlling government, finance, and media, and bent on achieving total world domination. The moment that antisemitic discrimination in schools is framed in terms of group and intersectional identity, it risks triggering the expansive prohibitions of Florida's “anti-woke” crusade. Furthermore, each of the rationales used by conservative proponents in support of these statutes has harmful consequences for broad-ranging study of antisemitism. Thus, even if the recent anti-antisemitism initiatives were not subject to critique on their own terms, their effectiveness could be neutralized by the “anti-woke” statutory juggernaut.

Admittedly, the new “anti-CRT” statutes face constitutional hurdles. But while powerful arguments can be made to contest them, the statutes will not all fail constitutional scrutiny in whole or in part. The provisions are being defended aggressively by the states. Courts have deemed the educational context to give states significant discretion, particularly in the K-12 context. Scholars argue that the current Supreme Court's interpretation of antidiscrimination claims under the Fourteenth Amendment would make successful claims on that ground quite difficult. As for First Amendment claims, while statutory vagueness poses problems, proponents point to regulations that can reduce vagueness and limit an excessive focus on viewpoint. Lawyers claim that surgical redrafting can avoid legal hurdles while still promoting the goals of anti-CRT legislation, and states like Florida are including savings clauses in their statutes to require constitutional application and address carve-outs of unconstitutional aspects. Even if parts of such legislation are struck down, much of the in terrorem effect of the unconstitutional provisions can be captured by more procedurally phrased provisions such as reporting and disclosure requirements, tenure rules, and other mechanisms that could advance governmental viewpoint preferences more indirectly. In any event, it is easy to imagine that such legislation can trigger extensive self-censorship effects even if all its provisions do not survive legal challenge intact. Whether or not such anti-antisemitism laws ultimately succumb to constitutional attack in whole or in part, they serve more as performative political expression than as realistic and effective solutions to the growing threats of antisemitism worldwide today.

Ultimately, viewing antisemitism through a purely political lens de-historicizes it and risks leaching it of its moral valence. Even on the political front, though, the current debates between Republicans and Democrats on antisemitism ignore the elephant in the room. Conservative politicians should stop legitimizing white supremacy through expression and association, and progressive leaders should acknowledge the critical role of antisemitism in organizing an insidious and increasingly confident white nationalist movement. That a Trump victory in the 2024 presidential election is even conceivable is an object lesson in why it is necessary to face up to the role of antisemitism in weaponizing white power extremism in America--and why democracy requires us to set aside political partisanship to combat it.

The Article proceeds in four parts. Part I sketches the rise in antisemitic incidents and expression both on and offline, using survey data and anecdotal accounts of antisemitic statements by government officials and political candidates to describe the politicization of antisemitism. Part II describes recent legal responses to the rise in antisemitism, discussing Congressional consideration of Antisemitism Awareness legislation, the Trump Executive Order, and the passage of anti-antisemitism prohibitions in the context of education in Florida. Part II raises critiques of these legal initiatives on their own terms. Part III zooms out to situate the anti-antisemitism legislation against the adoption in a number of states (including Florida) of illiberal and politicized educational gag orders and book bans that threaten academic inquiry, educational independence, and the anti-subordination battles of African Americans. The Part explains how state “anti-CRT” legislation such as Florida's--which principally target certain types of discussion of race and gender identity--can also be extended in practice to prohibit education designed to foster a rich and nuanced study of antisemitism and how to combat it effectively. Part IV highlights the interconnectedness between antisemitism and other prejudice, identifies the strategic role played by antisemitism in today's white power extremism, and calls for bipartisan attention to effective responses to the normalization of antisemitism for the benefit of American society as a whole.

[. . .]

Antisemitic expression and behavior have been increasing notably in the United States, gaining strength from the refusals of some notable politicians to divorce themselves from antisemitic remarks or groups, the normalization of antisemitic tropes in the words of some lawmakers and celebrities, the strategic social media messaging of growing white nationalist groups, the social disequilibrium ushered in by the COVID pandemic, and the recent Israel-Hamas war responding to Hamas's October 7, 2023 attack on Israelis. While many are focusing on the question of distinguishing between anti-Zionism and antisemitism, there is an apparent growth in, and normalization of, traditional and explicit antisemitism both online and IRL.

For some time, politicians have been using the apparent rise of antisemitism as a tool in their partisan political fights, lobbing charges of hypocrisy regarding antisemitism against each other as part of their political framing, public relations, and electoral strategies. Antisemitism has also been used as part of substantive political agendas--a tool to achieve broader ends than combating antisemitism itself. Republicans, for example, have been waging war on what they see as a leftward turn in academia and have deployed antisemitism on campus as a convenient vehicle to advance their fight. Democrats, in turn, have sought to distinguish antisemitism from anti-Israelism and charged Republicans with wielding antisemitism as a political tool to appeal to white nationalist voters and to protect right-wing policies of Israel against Palestinian challenge.

Recent conservative attempts to address antisemitism in the education context have produced controversial legal developments. Former President Trump's Executive Order 13899 interpreting Title VI as including antisemitic discrimination and subsequent Florida law modeled on the Order both rely on the IHRA definition of antisemitism. This has led to controversy, with some groups opposing these initiatives on constitutional and public policy grounds, with a particular focus on the inclusion of certain types of anti-Israel speech as examples of possible antisemitism under the IHRA definition.

Further, a close look reveals that such legislative initiatives may be rendered toothless by the highly politicized right-wing “education culture wars” that have swept the nation. As is evident from recent Florida legislation, the state-level trend of scorched-earth “anti-woke” education statues, which seek authoritative erasure of attempts to address systemic anti-Black racism, will likely crush at least some anti-antisemitism initiatives as well. Although they are not aimed at Jews, educational gag orders and book ban trends such as Florida's are likely to sweep into their prohibitions such things as Holocaust study and books, critical Jewish and intersectional education, and liberal Jewish-focused theories and publications. Educational gag orders and anti-CRT laws are typically grounded on a highly individualistic ideology that would undermine a broad and rich account of antisemitism as well as anti-Black racism. In their breadth and vagueness, such statutes can easily apply to discussions of antisemitism as a conspiracy about group identity. Even if some of these education-focused initiatives fail in the courtroom in whole or in part, they have already had a notable in terrorem effect on educators, school administrators, and others dependent on legislative largesse. In the meantime, proponents of sanitized history and homogenized identity have every incentive to reframe and redraft around the legal roadblocks they encounter.

The recent education-focused legal initiatives to combat rising antisemitism-- both at the federal and state level--have created controversy, invited litigation, threatened anti-Jewish backlash, and evidenced little practical success in combating the overall problem. A more holistic approach designed to minimize the politically instrumental use of antisemitism in partisan clashes and to resist the illiberal “anti-woke” educational culture wars could be more fruitful. This is the moment for such a pivot, as the rising normalization of antisemitism is a crisis not only for Jews, but for democracy as a whole. The ideology of antisemitism binds together the activities and strategies of white nationalists. Their broad authoritarian project involves not just antisemitic terrorization and otherization of Jews, but the destruction of American diversity in favor of a white, Christian, patriarchal, heterosexual, and gender-conforming nation with no room for, inter alia, Jews, Blacks, Muslims, LGBTQIA+ people, and non-European immigrants. To the extent we want American democracy to flourish, it behooves us to turn away from mere political theater, challenge white nationalism, and address antisemitism in ways that transcend partisan politics.

Professor of Law, University of Miami School of Law.