What should be done about the turmoil, violence, and explicit antisemitism that have engulfed college campuses over the past months? Political leaders in Washington have reacted to the escalating chaos with an understandable and predictable instinct: do something.
In this case, the student protests have motivated a bipartisan coalition of legislators in the House of Representatives to compose the Antisemitism Awareness Act. It passed on May 1 with 320 votes (and 91 against).
The goal of the Act is noble: to prohibit discrimination against Jewish students and employees on campus. As is often the case, however, the impulse to “do something,” even when supported by a bipartisan majority, does not always mean the resulting actions are wise or productive.
We come from two sides of the political spectrum. One of us (Christopher) is a conservative, the other (Jenin) is on the left. We also take very different positions on Israel—one of us believes that Israel deserves America’s support in its fight against Hamas; one of us believes that the denial of Palestinians’ right to self-determination is the primary impediment to peace. But both of us agree that the Antisemitism Awareness Act is profoundly misguided.
First, the main purpose of the legislation is to codify a definition of “antisemitism” as a point of reference for civil rights enforcement on college campuses. Legislators outsourced this definition to a nonprofit, the International Holocaust Remembrance Alliance, which defines antisemitic conduct and speech in a broad manner. Under this standard, “claiming the existence of a State of Israel is a racist endeavor,” “drawing comparisons of contemporary Israeli policy to that of the Nazis,” and “accusing Jewish citizens of being more loyal to Israel” will be deemed antisemitism.
It’s important to note, despite the hysteria of many online, that the Antisemitism Awareness Act does not, in itself, criminalize such speech. What it does is instruct bureaucrats to apply what could be, in effect, “hate speech” analysis to civil rights complaints. The Department of Education would gain the authority to withhold funding to institutions of higher education that do not punish violators.
This is a move in the wrong direction.
Existing laws against trespassing, violence, and property destruction are sufficient to deal with unlawful expressions of antisemitism on campus. And campus codes of conduct, which prohibit discrimination on the basis of race, religion, and ethnicity, cover much else.
“Hate speech” provisions, on the other hand, are unnecessary, ill-defined, and often in conflict with fundamental First Amendment rights. Contrary to popular belief, the First Amendment protects “hate speech,” in part precisely because of the difficulty defining the term, and also because such determinations are subjective. Under this new legislation, certain phrases and arguments, some of which are subject to reasonable contestation, could be treated as de facto evidence of discriminatory intent. (For example, arguing in favor of a one-state solution to the Israeli-Hamas conflict could be deemed violative on the grounds it denies the Jewish people a right to a state.)
Rather than enacting dubious legislation, the proper approach is to protect the rights of protesters to express their opinions, even when those opinions are abhorrent, while enforcing laws and regulations that prohibit tent encampments, campus disruption, and acts of violence.
The second problem with the Antisemitism Awareness Act, especially for conservatives and civil libertarians, is that it operates using the same coercive and corrosive principles as DEI. The legislation codifies an ideologically charged definition of antisemitism into law, provides special protections based on group identity, and expands anti-discrimination enforcement to include constitutionally protected speech.
This is precisely how existing DEI bureaucracies operate on campus, with disastrous results.
From a political perspective, this legislation is also a failure. While the left has embraced special protections for their favored minorities, it now appears to many that the political right is doing the same, only now for Jewish Americans. Similar bills are passing through numerous state legislatures from New York to Georgia.
Anyone who worries about pitting identity groups against one another, or is repelled at the idea that some Americans deserve more protections than others, should oppose all of this proposed legislation. It violates our country’s most fundamental principles, including the letter and spirit of the First and Fourteenth Amendments, which guarantee Americans the rights to free speech and equal treatment under the law, regardless of their racial, ethnic, or religious identity.
The only constitutional and moral approach is to establish a single, color-blind standard applicable to all individuals, regardless of their background. Any policies which, by definition, subordinate the individual to the group and suppress our speech will harm our nation in the long run and exacerbate, rather than resolve, racial and ethnic prejudice.
In this heated moment, we must return to the principles that have made this country exceptional: the rule of law, equality under it, free speech, and the protection of our individual, natural rights.
Jenin Younes is litigation counsel for the New Civil Liberties Alliance. (This piece is written in her personal capacity and does not reflect the views of her employer.)
Christopher Rufo is a senior fellow at the Manhattan Institute and the author of America’s Cultural Revolution: How the Radical Left Conquered Everything.
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