JUSTICE - No. 68

25 Summer 2022 Supreme Court precedent requires that behavior be “objectively offensive” in order to be classified as discriminatory harassment,51 and thus a form of destructive behavior that (even critics of IHRA’s adoption admit) can and should be regulated.52 Behavior that is merely offensive to some would therefore not be included.53 As the Court has noted, “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering ‘all the circumstances’…”54 Even under anti-discrimination laws, not all forms of harassing behavior are illegal. For example, typical bullying behavior does not run afoul of Title VI, so long as the bullying is not based on race, color, or national origin. It is only illegal, and therefore subject to regulation, if it includes discriminatory intent. The problem – when it comes to antisemitism – is that Jewish identity is multifaceted (encompassing aspects of race, religion, culture, national origin, and ethnicity). Without a definition of antisemitism, it is easy for people to commit antisemitic acts and subsequently claim that it was not antisemitic because it was not based on a particular characteristic.55 The reason that states need to adopt a definition of antisemitism has nothing to do with establishing new laws or creating new categories, and everything to do with defining a term to ensure equal protection under existing laws. To meet the “objectively offensive” standard required by law, the definition used in the discriminatory antisemitism motivational analysis must be one that is objectively well-accepted. The IHRA definition is the only one that meets this criterion. What It Means for a State to Adopt IHRA as Part of an Antisemitism Bill In practice, the new antisemitism bills are quite narrow. All they do is ensure that when analyzing the intent behind illegal discriminatory actions (not speech) that target Jewish people, in cases where there is an allegation that the action was motivated by anti-Jewish sentiment, the authorities consider (as rebuttable evidence) the world’s accepted definition of antisemitism. Here, for example, is the Iowa law: Section 1. Definition. For purposes of this chapter, “antisemitism” means the working definition of antisemitism adopted by the international holocaust remembrance alliance on May 26, 2016, and includes the contemporary examples of antisemitism identified by the International Holocaust Remembrance Alliance. Section 2. Rules of construction. This chapter shall not be construed to diminish or infringe upon any right protected under the first amendment to the United States Constitution, or the Constitution of the State of Iowa. This chapter shall not be construed to conflict with local, federal, or state discrimination laws. Section 3. Determination of discriminatory acts – consideration of antisemitism. 1. In reviewing, investigating, or deciding whether there has been a violation of any relevant policy, law, or regulation prohibiting discriminatory acts, the state shall take into consideration the definition of antisemitism set forth in this chapter for purposes of determining whether the alleged act was motivated by discriminatory antisemitic intent. 2. A court or other relevant authority shall apply the same legal standard as applicable to like claims of discrimination arising under laws of this state protecting civil rights, including chapter 216. Section 4. State personnel discrimination training. For the purposes of training of state personnel related to discrimination and anti-bias training, the definition of 51. Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 652 (1999). 52. Erwin Chemerinsky & Howard Gillman, “A Bill to Police Campus Speech,” WALL ST. J. (Dec. 15, 2016, 6:31 PM), available at https://www.wsj.com/articles/a-bill-to-police- campus- speech-1481846338 53. See Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). To be considered harassment in the educational context the behavior must be “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” See also Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 205–10 (3rd Cir. 2001) (detailing analogous standards for Title VI, which prohibits racial discrimination in education; Title VII, which prohibits workplace harassment; and Title IX, which prohibits sexual harassment in education). 54. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82, 118 S. Ct. 998, 1003, 140 L. Ed. 2d 201 (1998). 55. See https://mishpacha.com/contributors/moshe-goldfeder/. Notwithstanding the above, the importance of clarity in such definitions is not entirely unique to antisemitism, and to the extent that any other group feels it is being routinely and systemically discriminated against, and that there is a need for a definition to clarify what is and is not hate speech, that group’s concerns should likewise be addressed.

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