Will President Biden Follow Through on His Pledge to Combat Anti-Semitism?

During the White House Hanukkah party, President Joe Biden reiterated his longstanding commitment to combat anti-Semitism. He promised a national strategy, a White House summit, and increased security funding. In stark terms, he identified the stakes involved: “evil — this is not hyperbole — evil will not win. Hate will not prevail.” The question now is whether President Biden will follow-through on these bold words, providing the policies, enforcement, and resources necessary to ensure that this evil and hate are defeated.

That question is made urgent by an omission in Biden’s remarks. Conspicuously, he did not mention the crucial and yet long-delayed federal regulation on combating anti-Semitism. The White House long ago announced that this important new rule would be unveiled in December 2022. Typically, when the White House has a policy that is expected to be well-received, staffers move heaven and earth for a well-timed White House announcement. Hanukkah would have been perfect. The question now is whether the proposed rule, when it is finally proposed, will be viewed as a late present or a lump of coal.

This promised regulation, which I initially proposed during the Trump administration, is intended to codify the 2019 Executive Order on Combating Anti-Semitism. To do so, it must do two things. First, it must preserve the rule that Jewish Americans, like other ethno-religious groups, enjoy equal protection under Title VI of the Civil Rights Act of 1964. This protection, which I announced while heading the Education Department’s civil rights agency in 2004, was reiterated by the Obama administration in 2010 but has never been formalized in regulations.

Second, it must incorporate the IHRA Working Definition of Anti-Semitism, including contemporary examples relating to Israel. This is the internationally-agreed upon standard, endorsed by nearly forty nations as well as hundreds of other governmental and non-governmental entities.

President Biden could better the Trump record by entrenching the Executive Order in the Code of Federal Regulations, further fleshing it out as the Obama administration did for the Bush guidance. Biden might also use the occasion to solidify protections for other ethno-religious groups, such as Arab Muslims, Coptic Christians, and Sikhs. This would be a welcome addition.

Each of the last three administrations have built upon work done by their predecessors. During the George W. Bush administration, OCR recognized that Jewish students enjoy legal protection under Title VI. The Obama administration affirmed the Bush policy, embellishing it with clarifying guidance. The Trump administration affirmed the Bush-Obama rules and, in addition, provided that federal agencies will use the Working Definition when appropriate.

The importance of maintaining IHRA cannot be overstated. Without this definition, OCR was long rudderless in its efforts to address a form of hate which it simply did not understand. And absent such a formal definition, the agency was unable to handle systemic campus anti-Semitism case for nearly a decade and a half following the initial 2004 guidance.

Under the current OCR guidance, which includes IHRA, Assistant Secretary Catharine Lhamon has commendably opened several important cases involving systemic anti-Semitism, including the Brandeis Center’s cases Brooklyn College, the University of Vermont, and the University of Southern California.

Whatever President Biden does, he should not diminish use of the Working Definition by paring it with a lesser standard. The controversial Jerusalem Definition, which some left-wing activists advocate, has been criticized for defining anti-Semitism too narrowly, misunderstanding Jewish experience, and inadvertently giving cover to anti-Semites. It is hardly a substitute for the internationally agreed-upon standard, and its usage would significantly undermine civil rights enforcement.

President Biden’s words are strong, but his administration’s actions do not always match. Earlier this month, the Biden administration botched its presentation of federal hate crimes data. Nationwide underreporting has plummeted so far this year, especially in areas with high Jewish populations, that the FBI data mischaracterizes last year’s record spike in anti-Semitism as if it didn’t occur – falsely suggesting a decrease. Mistakes can happen. But it is hard to excuse the administration’s failure to correct these errors, now or in the future.

The stakes are high. President Biden has correctly identified the seriousness of confronting anti-Semitism. Now his administration needs to deliver a strong regulation to ensure, in his words, that evil will not win and hate will not prevail.