The Biden Administration National Strategy to Counter Antisemitism Reaffirms its Use of the IHRA Definition

Last Thursday the Biden Administration announced that as part of implementing its National Strategy to Counter Antisemitism, eight more federal agencies have now officially adopted the Marcus Policy under Title VI of the Civil Rights Act, and will be making use of the International Holocaust Remembrance Alliance (IHRA) Definition of antisemitism in order to better protect the Jewish community. Also Thursday, the State Department re-affirmed that in order to fight antisemitism we must define it, and that IHRA is the right definition to help combat antisemitism.

By way of background, in the United States, Title VI of the federal Civil Rights Act of 1964 requires all recipients of federal funding to ensure (and annually affirm) that their programs and activities are free from harassment, intimidation and discrimination on the basis of race, color and national origin. Notably, the Act does not give the Department of Education’s Office for Civil Rights (OCR) jurisdiction to investigate religious bias, and so until 2004, OCR typically did not investigate complaints about antisemitism. The problem with that is simple: Judaism is not just a religion, and Jewish identity in particular can be multifaceted, incorporating aspects of religion, race, culture, national origin and ethnicity.

In a groundbreaking September 13, 2004 Dear Colleague letter, then Deputy Assistant Secretary of Education for enforcement Kenneth L. Marcus issued a series of policy statements announcing that OCR would henceforth investigate antisemitism complaints, to the extent that they implicate ethnic or ancestral bias. The logic behind the policy clarification was clear: much of the hatred embodied in antisemitism (and the same is true for Islamophobia) has nothing to do with specific religious practices, and everything to do with ethnicity or ancestral bias. To put it in practical terms, people very rarely hate Jews because they do or do not light Shabbat candles on Friday evenings. They do, however, often hate them for their racial or national origin identity, especially when that involves a real or even just a perceived connection to the State of Israel.

As the Marcus Policy directive explained, “[g]roups that face discrimination on the basis of shared ethnic characteristics may not be denied the protection of our civil rights laws on the ground that they also share a common faith.” The legality of the policy was obviously correct, and built on precedential application of other civil rights statutes. See, for example, Singer v. Denver Sch. Dist. No. 1 (D.Colo.1997), dealing with Section 1982 claims. Since that time, the Marcus Policy reasoning has been amplified by the U.S. Commission On Civil Rights, and confirmed in court both in regard to Title VI cases (See T.E. v. Pine Bush Cent. Sch. Dist., [S.D.N.Y. 2014]) and in the Title VII context as well (see Bonadona v. Louisiana Coll., [W.D. La. 2018]). While the Supreme Court has not yet weighed in on the specific issue, the Court has twice held that other statutes that were similarly intended to protect  identifiable classes of persons who are subject to intentional discrimination “because of their ancestry or ethnic characteristics” included Jewish people—whether or not they would be classified as a race in terms of modern scientific theory (see SAINT FRANCIS COLLEGE, et al., Petitioners, v. Majid Ghaidan AL–KHAZRAJI, etc., 481 U.S. 604 [1987] and Shaare Tefila Congregation v. Cobb, 481 U.S. 615 [1987]). Nor was this ever, in any way, a partisan issue. On October 26, 2010, the Obama Justice Department released an opinion letter confirming the legal correctness of the 2004 Policy.

There was, however, one additional problem for OCR; because Jewish identity and the corresponding manifestations of antisemitism are so multifaceted, without a standard definition to use as a reference, it was still too easy for antisemites to hide behind this vagueness, commit horrible acts that targeted Jews, and then claim their actions were not antisemitic because they were not based on this or that particular characteristic. That led to an equal protection problem that still lingers to this day, and is a contributing factor in the high rates of antisemitic incidents we are currently seeing.

That led to an equal protection problem that still lingers to this day, and is a contributing factor in the high rates of antisemitic incidents we are currently seeing.

In order to correct this problem, on December 11, 2019, the Trump Administration announced an executive order codifying the (now longstanding) Marcus Policy that, for the purposes of Title VI discrimination claims, Jewish students are protected against antisemitism. The Order also clarified that when evaluating these claims, the Department should consider the International Holocaust Remembrance Alliance’s (IHRA’s) definition of antisemitism. The United States had already been using IHRA for a while; the Definition was incorporated as a guide by the U.S. State Department as early as 2007, unofficially adopted in 2010, and formally adopted in 2016  after it was officially accepted by a plenary meeting of the then-31 countries in the IHRA (including the US). Over the last two decades, the IHRA definition has proven to be an essential definitional tool used to determine contemporary manifestations of antisemitism and is in use by dozens of countries and 1100+ other entities worldwide. While the Definition makes clear that criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic, it also includes useful examples of discriminatory anti-Zionism that can cross the line into antisemitism.

Again, none of this was partisan; there are very few things that the Bush, Obama, Trump and Biden administrations all agree on, but the use of the Marcus Policy, and the IHRA definition, are two of them.

The Executive Order on Antisemitism (reaffirmed by the Biden administration) already applied to any agency within the entire federal government that made use of Title VI. Until now, however, only the Department of Education had been explicit in how they intend to use Title VI to protect Jewish people who are targeted for their shared ancestry, race, national origin and ethnicity. As of September 28, however, the Departments of Agriculture, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, Treasury, and Transportation have all committed to the same. Just a short while later that same morning, Ambassador Deborah Lipstadt, the Special Envoy on Antisemitism, released a report confirming that from the perspective of the United States government, combating antisemitism begins with doing what the U.S. and many others have already done: embracing and applying IHRA.

When the National Strategy document was originally released, there was some legitimate concern that its very acknowledgement of the existence of other (unaccepted) definitions of antisemitism could lead to some confusion about the near-universal acceptance of IHRA. This was despite the fact that the plan was clear that the United States uses only IHRA, and that the other definitions were wrong on key points. The rollout, however, has been remarkably consistent, and it is a relief to see that with antisemitism surging to unprecedented levels across America, the Biden administration is serious about delivering the “most ambitious, comprehensive effort in our history to combat antisemitism in America,” and that instead of seeking to appease those who would undermine this effort by watering down what counts as antisemitism, it continues to unequivocally endorse the IHRA definition in a responsible, whole-of-government way.

Dr. Mark Goldfeder is Director of the National Jewish Advocacy Center.