Embrace of IHRA’s Definition is One of Biden’s Early Policy Victories

This week, the Biden/Harris administration boldly declared that it “embraces and champions” the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism. The announcement reflects the administration’s appropriate commitment to protecting minority communities that feel extraordinarily vulnerable after the last 4 years. And yet, the IHRA definition has become a point of tension in parts of the progressive movement, with a number of organizations opposing its adoption.

Some have argued that the new administration should have immediately reversed an Executive Order signed in 2019 that protects Jewish students from campus antisemitism by mandating reference to the IHRA definition. According to these groups, the definition’s illustrative examples of contemporary antisemitism––including its manifestation in “anti-Zionism”––would “stifle free speech and suppress debate on Israel.”

Some quote former Secretary of State Pompeo’s support of the IHRA definition as a reason to oppose it, arguing that the Trump administration used “spurious examples of antisemitism as a cudgel to attack its political opponents.” They’re undeniably correct: the Trump administration unconscionably weaponized antisemitism and support for Israel for partisan political gain, and did serious damage to our Jewish community in the process.

Yet in using the Trump Administration to make the argument that support for the IHRA definition is partisan––and Trumpian––these groups curiously omit the fact that Secretary of State Hillary Clinton adopted a definition of antisemitism almost identical to IHRA’s at the Department of State in 2010. Critics trying to paint a partisan picture also leave out the fact that the Anti-Semitism Awareness Act, a piece of federal legislation that would have codified the IHRA definition, sailed through the Senate unanimously at the end of 2018 before hitting a Republican roadblock in the House.

Antisemitism often manifests via conspiracy theories and age-old tropes unrecognizable for those not deeply educated in this ancient form of hate, which is why defining this evil is a necessary first step to combating it. But, contrary to some of the arguments being made, defining hate speech is not the same thing as banning it.

Hate runs rampant in this country, especially during the Trump era, and, like it or not, hate speech remains quintessentially protected. People can, and do, say racist, Islamophobic, misogynistic, homophobic, transphobic, ableist and xenophobic things every day––and unless they are inciting imminent violence, their right to do so is sacrosanct under the First Amendment.

People have the right, too, to say antisemitic things. People have the right to call Jewish students “Zionist oppressors” and “baby killers,”; they have the right to scream “Intifada, Intifada” in the faces of Jewish community members; they have the right to claim that Israel is a “racist” or “genocidal” or “illegitimate” endeavor, and that Jewish students who support its existence are “white supremacist ethnonationalists”; they even have the right to cover the campus quad with fliers that say “Zionists, Get the F**k off our campus”––referring to the 95% of American Jews who support Israel as our people’s sanctuary from persecution.

Jewish students and their allies also have the right to call this what it is: antisemitism. They have the right to expect that those investigating claims of a hostile campus climate understand why it’s antisemitism, too. They have the right to reject the implication that these attacks on Jews are “criticism of Israel,” and the argument that the Executive Order “risks chilling constitutionally protected speech by incorrectly equating criticism of Israel with anti-Semitism.”

And if students do complain to campus authorities, the required response under civil rights law, namely Title VI of the Civil Rights Act of 1964, is not to punish the antisemitic speakers, or “banish” their hate speech. Instead, the university is put on notice that it must “cure” a potentially antisemitic environment, including through steps as simple as exercising its own First Amendment protected right to speak and condemn such antisemitism, ensuring a safe environment for Jewish students to learn and participate fully in campus life. It is only in the event that a university administration, over a sustained period of time, refuses to ensure the protection of Jewish students, to the extent that the campus environment becomes “pervasively hostile” for Jews, that any legal consequences attach. In the rare circumstance that a violation of Title VI was found, the university––not the antisemitic speakers––would be held accountable for the toxic campus climate.

Asking the Department of Education, as the Executive Order does, to consider the [non-legally binding] IHRA definition in cases where antisemitism is alleged, does not change the process that DoE must go through in adjudicating a Title VI complaint––including in understanding its own First Amendment obligations. The only difference is that, in adjudicating a case of anti-Black, anti-Chinese or Islamophobic discrimination, the blatant hatred would generally be easily recognizable. Antisemitism’s complex manifestations are simply not always as clear as a neo-Nazi wearing a “Camp Auschwitz” sweatshirt, and the IHRA definition serves as a reference to help our government institutions understand contemporary antisemitism so that they can identify and address it.

We all recognize the “Camp Auschwitz” sweatshirt as antisemitism; there is profound cognitive dissonance in claiming to understand how serious this evil can be, while arguing against the existence of a sovereign Jewish state. Israel is what makes Jews confident that “Never Again” actually means something. Denying Jews that inalienable right as a people, wishing to return us to a state of total systemic powerlessness, is just as anti-Jewish as celebrating what happened to us the last time we were in that very position.

“We all recognize the “Camp Auschwitz” sweatshirt as antisemitism; there is profound cognitive dissonance in claiming to understand how serious this evil can be, while arguing against the existence of a sovereign Jewish state.”

Furthermore, contrary to the stated position of IHRA’s critics, it is simply not that difficult to distinguish between criticism of the Israeli government and demonization or delegitimization of the state of Israel.

I frequently criticize the Israeli government. I was apoplectic about the possibility of annexation. I was distraught over the prejudicial Nation State law. I was devastated about the surrogacy law making it impossible for gay male couples to procreate (which has, thankfully, now been suspended). I am constantly dismayed by the power of the rabbinate and what it means for women’s rights and pluralism, and I’m distressed that settlement expansion is detrimental to the hope of a two-state solution, no matter how remote its current likelihood. I have witnessed discriminatory treatment of Palestinians, and talked extensively about those painful experiences.

The IHRA definition expressly states that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic”––and I level similar criticism against the United States (and many other countries) on a daily basis. The suggestion that codification of the IHRA definition makes it, in any way, challenging to criticize actual Israeli policy, is patently absurd.

Yet, Israel’s legitimate existence is simply not up for debate––at least, it wouldn’t be, in a world devoid of antisemitism.

The IHRA definition of antisemitism is just one tool in a massive toolbox, but it is an important one. The new administration’s recognition of the value and practicality of the IHRA definition will enable it to confront this one particular, rapidly snowballing form of hate. Many grateful Jewish Americans will continue to cheer as the administration works to conquer other flourishing forms of hatred, as well.

Amanda Berman is the founder and executive director of Zioness.