Five important steps that the federal government should immediately take to counter the rise in anti-Jewish discrimination

PHOTO: SHUTTERSTOCK/WOODAN

The reelection of President Donald Trump was historic for a number of reasons, and one of them is the potential for a significant reset on how the federal government responds to acts of unlawful anti-Semitism.

Law enforcement often depends on prosecutorial discretion, and until now, there has been little executive branch appetite to hold those perpetrating unlawful acts of anti-Semitism accountable. G-d willing, that will change when a new administration takes over in January. Here are five important steps that the federal government should — and by all reports will — immediately take to counter the rise in anti-Jewish discrimination:

Issue Guidance on the Application of the First Amendment

On campuses across the United States, Jewish students are being harassed and intimidated, and in too many cases, administrators are hiding behind the First Amendment, pretending that this is all about free speech. The Department of Justice and/or the Department of Education should emphatically communicate that the First Amendment is not some complicated mystery that no one knows how to apply, and that the government expects universities to uphold it consistently and correctly.

To be clear: The First Amendment is not a free pass to threaten, harass, intimidate, or otherwise violate the rights of others. There are limits to what constitutes speech, and there are rules for when it crosses over into actionable unlawful conduct. For example, the First Amendment does not protect arson, trespassing, vandalism, harassment, assault, or the destruction of property. It does not protect threats or intimidation, or incitement. Protests are an important part of a functioning democracy, but schools can and must impose reasonable time, place, and manner restrictions to ensure that everyone’s rights are protected.

And schools do not have to wait for more people to get hurt. The Supreme Court in Healy v. James (1972) cited Tinker v. Des Moines (1969) to hold that university officials do not have to tolerate or allow student activities that breach reasonable campus rules, interrupt the educational process, or interfere with other students’ rights to receive an education.

This is especially true when the student speech is happening in school-sponsored forums or is reasonably perceived as bearing the imprimatur of the institution. Under Bethel v. Fraser (1986) and Hazelwood v. Kuhlmeier (1988), schools have even greater latitude to limit student expression if they can establish a legitimate pedagogical concern.

Ensuring that all students, including Jewish students, have a safe and harassment-free environment in which to learn is (or should be) an overwhelmingly legitimate pedagogical concern.

Enforce Title VI of the Civil Rights Act of 1964

Under Title VI, institutions that take federal funds have an obligation to protect their Jewish students, and all students, from discrimination based on race, color, or national origin. During his first term, President Trump issued Executive Order 13899 on Combating Antisemitism, which, among other things, incorporated the International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism into Title VI.

This should have clarified that discriminating against Jewish people for any aspect of their Jewish identity, including a real or perceived connection to the State of Israel, is unlawful. But for the last four years, the federal government has repeatedly delayed issuing the regulations needed to fully implement the executive order. The incoming administration should immediately issue those proposed regulations, and also expand the order to include all other federal antidiscrimination laws.

As it relates to schools in particular, per the US Department of Education’s Office for Civil Rights, speech becomes harassing conduct when it is “sufficiently severe, pervasive, or persistent so as to interfere with or limit” the ability of students to join in or benefit from a university’s services or activities. Many Jewish students (even some professors) are literally afraid to go to class.

If the words of Title VI mean anything, they must protect against hostile environments like this, and yet — until now — not a single university has lost any of its funding. The incoming administration has already made clear that things will be different going forward, and that change cannot come any too soon.

Enforce the Various Laws against Providing Support for Terrorism

Under the federal Anti-Terrorism Act (ATA), it is a crime if someone “knowingly provides material support or resources to a foreign terrorist organization.” Groups like National Students for Justice in Palestine are openly working as agents of Hamas and handing out recruitment flyers to our youth. My organization, the National Jewish Advocacy Center, has brought five federal anti-terrorist act lawsuits since October 7, using the correlative civil cause of action to go after some of these bad actors.

But we should not have had to do that, because the government should have been using the criminal provisions to protect our country. G-d willing, now they will.

In addition to the ATA, the Immigration and Nationality Act mandates that those engaging in terrorist activity are barred from entering the United States, and that also applies to people who have “persuaded others to endorse or support one of these named terrorist groups.” Those who have been unlawfully importing terrorism and anarchy can and should be deported.

Relatedly, the Treasury Department has the ability to revoke the tax-exempt status of organizations that funnel donations to terrorist groups, and they can and should use it to shut them down.

Enforce the Laws Governing the Disclosure of Foreign Funds

Section 117 of the Higher Education Act requires schools disclose foreign gifts above certain thresholds to the Department of Education. Recent studies have found that schools are simply ignoring this obligation, with billions of dollars of unreported funds flowing in from authoritarian Middle Eastern regimes.

The studies also found that the receipt of this undocumented money is associated with both the erosion of free speech norms, and a rise in anti-Semitism. Per the Institute for the Study of Global Antisemitism and Policy, from 2015 to 2020, institutions that accepted these undocumented funds had, on average, 300 percent more anti-Semitic incidents than those that did not.

The statute authorizes the Attorney General of the United States to bring a civil action against an institution at the Secretary of Education’s request “whenever it appears that an institution has failed to comply with the requirements of [Section 117].” The DOE and DOJ must work together to enforce these laws, including in the form of penalties for failure to follow the requirements, and the withholding of additional grants.

Expose and Break the Network of Organized Criminal Perpetrators

Much of the anti-Semitic unrest we have seen around the country has been fomented by a group of radical  organizations preying on the ignorant and impressionable. Those groups that have been working in concert to commit unlawful acts should be held fully accountable.

For example, Section 241 of Title 18 of the US Code (part of a series of measures known as the Ku Klux Klan Acts) makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” exercising a right protected by the Constitution or federal law, while the Racketeer Influenced and Corrupt Organizations Act (RICO) targets organized criminal activity and racketeering, enhancing existing criminal punishments for acts done as a part of an organized enterprise. There are dozens of cases in which the anti-Semitic groups in question have perpetrated — and taken credit for — actions that would count as predicate acts under the relevant laws.

Going after the entire infrastructure at once would be beneficial for a number of reasons. Aside from efficiency, discovery could help uncover (and eliminate) the funding sources fueling the hate. More importantly, exposing the organized nature of this movement could help open people’s eyes to the underlying motives of these bad actors, many of whom are focused not only on Jews but on taking down the West.

This might help remind our fellow citizens that what starts with the Jews never ends with the Jews, and that stopping anti-Semitic hate crimes is a matter of self-preservation for all Americans.

May G-d bless and protect His people, and the United States of America, and may the government do its part.

(Originally featured in Mishpacha, Issue 1041)