Three Things the US Can Learn from the EU’s New Strategic Plan

Last week the European Commission, the Executive Branch of the  European Union, unveiled a new comprehensive EU Strategy on combating antisemitism and fostering Jewish life to address a significant increase in incidents around the 27-country bloc. While the United States has seen a similar trajectory, our federal government has yet to develop an encompassing governmental response to the problem. Perhaps the EU will inspire the U.S.

On a practical level, the EU proposal contains a number of concrete suggestions—including annual stakeholder forums designed to maximize the effect of joint actions and funding, and additional resources dedicated to better understanding and tracking the spread of online hate—that could aid in the fight against domestic antisemitism. More broadly, it addresses three crucial areas in which U.S. federal and state policy have been lacking: defining, monitoring and preventing antisemitism.

First, the Commission actively encourages all member states to adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, an essential tool used to determine its contemporary manifestations. The federal government does use the definition, but some politicians have been hesitant to embrace it because among its illustrations of things that could contextually be antisemitic are examples of problematic anti-Zionism, and these officials are ostensibly concerned that embracing IHRA would somehow stifle speech. That argument, however, is a legal red herring and the EU did not take the bait.

Aside from the fact that IHRA itself distinguishes between criticizing Israel and antisemitism, the use of a definition alone simply does not silence any speech—it just allows people to label it correctly. You cannot fight what you can’t define, and what the EU got right is that the IHRA definition is helpful precisely because it includes those useful examples of discriminatory anti-Israel acts that can cross the line into antisemitism—for example, “holding Jews collectively responsible for actions of the state of Israel.” No one who labels sexist speech sexist, or racist speech racist is accused of stifling speech. In fact, officials are often praised for using their own speech to condemn these types of (legal) expression, without crossing the line into censorship. Our government should, consistent with the First Amendment, follow the EU’s lead and actively promote the implementation of IHRA in anti-discrimination policies at all levels. If necessary, they can even issue a handbook (like the EU did) for IHRA’s practical use. Meanwhile, passing the bi-partisan bi-cameral Anti-Semitism Awareness Act, which reaffirms the use of IHRA on campus, would be a great step in this direction.

Next the EU recognized that under current reporting standards it is challenging to obtain reliable and comparable data on antisemitic incidents. The new plan commits resources to help Member States improve and align their methodologies for consistently recording, collecting and assessing information on hate crimes, including antisemitism. But those in the EU are not the only ones experiencing this problem.

In the U.S., under the Hate Crime Statistics Act (modified by The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act), the Attorney General, through the FBI, is tasked with monitoring crimes in which there was “manifest evidence of prejudice” against the victim’s race, religion, disability, sexual orientation or ethnicity. The FBI  relies on local law enforcement agencies to submit data, but thousands opt out of the reporting, and, according to one report, even “among the 15,000 that do, some 88 percent reported they had no hate crimes.”

Standardized and aligning methodologies for federal reporting of bias incidents—including but not limited to the use of IHRA—would be helpful in making sure that the statistics about antisemitism more accurately reflect reality. 

One issue is the lack of definitions: That same report found that “investigators frequently did not mark down incidents as motivated by bias, even if there was evidence suggesting this was so—a spray-painted swastika, for example, might be classified simply as vandalism and not also as a hate crime.” In 2019 (i.e. just before COVID), the number of agencies participating further declined, but the number of reported hate crimes actually rose by 113 percent, including a 14 percent increase in anti-Jewish hate crimes. All across the country 63 percent of the total reported religion-based crimes were directed against Jewish people and institutions, and one can only imagine the real number. Standardized and aligning methodologies for federal reporting of bias incidents—including but not limited to the use of IHRA—would be helpful in making sure that the statistics about antisemitism more accurately reflect reality. 

Finally, the EU plan contains several affirmative steps to attempt to prevent antisemitic sentiments from flourishing. Acknowledging that ignorance and indifference are key culprits, it lays out a number of educational initiatives focused on celebrating Jewish life, culture and societal contributions, while raising awareness about antisemitism and the Holocaust. It also calls for the Commission to ascertain that there is no antisemitism in EU textbooks or classrooms, and to ensure that EU funds are not allocated to antisemitic activities. 

If only the U.S. would do the same.

In stark contrast, the same week the EU established these programs, Governor Gavin Newsom signed California’s Assembly Bill 101 into law, making ethnic studies a high school graduation requirement. While there is nothing inherently wrong about the idea, the first draft of the bill’s model curriculum was so stunningly, openly antisemitic that Newsom himself apologized on behalf of the State, called it “offensive in so many ways, particularly to the Jewish community,” and vowed the draft “would never see the light of day.” Legislators redid the course to make it less objectionable, and appended seven amendments to confirm against anti-Jewish hate being taught. As Tammi Rossman-Benjamin has noted, “the fact that no less than seven “guardrails” were deemed necessary for preventing AB 101 from facilitating the widespread promotion of antisemitism is itself a stunning indictment of the bill and the dangers it poses for Jewish students and the Jewish community.”  But aside from that, as the LA Times warned, these measures will actually do absolutely nothing. The bill still allows schools to use their own curricula, and multiple districts and teachers’ unions have already signed statements promising to use the original, highly antisemitic, version of the course.

But apparently, as the AMCHA Initiative (an organization which fought against the bill) explained, the concerns of hundreds of Holocaust survivors and their descendants, dozens of religious, civil rights and education organizations, thousands of Californians, and hundreds of students and parents begging the government to protect them and their families from state-sponsored antisemitism simply did not matter enough.

It did not have to be this way. For example, the bill could have just required schools to use the new model, or to submit their own curriculums for review. But apparently, as the AMCHA Initiative (an organization which fought against the bill) explained,  the concerns of hundreds of Holocaust survivors and their descendants, dozens of religious, civil rights and education organizations, thousands of Californians, and hundreds of students and parents begging the government to protect them and their families from state-sponsored antisemitism simply did not matter enough. The onus now shifts to Jewish parents and children in each of California’s 13,000 school districts to fend for themselves against the harmful and long-lasting effects of antisemitic material being taught to their children in a state-mandated class. 

Unless, of course, the federal government, like the EU, steps in where they can and should.  

Title VI of the Civil Rights Act of 1964 prohibits discrimination in federally assisted programs, and federal education funding is distributed to states and school districts through a variety of grants. A school district announcing its plans to teach discriminatory material is exposing itself to liability, and the Department of Education should proactively cut off funding from those who flaunt its rules. It should never have come to this, but the federal government must put these schools on notice that under Title VI they have an affirmative legal obligation to protect their Jewish students—even from their own teachers and unions if need be.  

The U.S. must do better, and do our part, in the global fight against antisemitism. That includes adopting and enforcing standards for defining, monitoring and preventing antisemitism. The tools are there, the time is now, and the EU has shown the way. 

If they can do it, so can we. 

Dr. Mark Goldfeder, Esq. is Director of the National Jewish Advocacy Center. He served as the Founding Editor of the Cambridge University Press Series on Law and Judaism.