Today, President Donald Trump is doing what successive rounds of bipartisan activism in Congress and in college administrations could not: signing an executive order formally adopting a new definition of antisemitism, with the explicit goal of targeting Palestinian rights advocates on college campuses.
The order says that the Department of Education will begin to use a definition of antisemitism that would include broad swaths of criticism of the state of Israel, such as suggesting that the country should have never been created. The effect of this will be that the department’s Civil Rights division, which is responsible for enforcing antidiscrimination guidelines attached to federal higher education funding rules, can use that funding as leverage against universities to get them to crack down on campus criticism of the Israeli government.
Though this particular definition has been applied elsewhere, to great controversy and limited success in the UK, it was never drawn up as away to regulate political or even antisemitic speech. But according to one of the definition’s original co-authors, the human rights lawyer Kenneth S. Stern, the Trump administration and its allies are using the definition in ways that Stern and his colleagues had never intended.
Although the initial New York Times story about the executive order indicated that it would “effectively interpret Judaism as a race or nationality,” the actual text of the order doesn’t go quite that far. Instead, the order has repurposed the meat of a bill — the Anti-Semitism Awareness Act — that’s been stalled in Congress since before Trump took office. And like its congressional counterpart, the focus of the executive order is on college campuses: “Anti-Semitic incidents have increased since 2013, and students, in particular, continue to face anti-Semitic harassment in schools and on university and college campuses,” the text of the order reads.
The characterization of antisemitism embedded within the Anti-Semitism Awareness Act and Trump’s new order is also known as the International Holocaust Remembrance Alliance (IHRA) definition. Initially developed in 2004 by a European Union racism watchdog agency, the idea behind it was to give monitors a better understanding of when something qualified as antisemitism. The EU never officially recognized this “working” definition, but it had staying power.
The IHRA, an intergovernmental organization concerned with Holocaust education, formally adopted the definition in 2016, giving it the name by which it is now called. Barack Obama’s State Department adopted the “non-legally binding” definition shortly thereafter, noting that “as member of IHRA,” the United States now encourages “other governments and international organizations to use it as well.”
Kenneth Stern, now the director of the Bard Center for the Study of Hate, was among the co-authors of the definition back in the mid-2000s. At the time, he was a lawyer with the American Jewish Committee, which organized the conference where the definition was created in response to what he told me was an uptick in antisemitic incidents in Europe after the collapse of Israeli-Palestinian peace talks. In a conversation that took place shortly after the text of Trump’s antisemitism executive order was leaked to Jewish Insider on Wednesday, Stern said to me that “it was never designed as a vehicle for suppressing speech on campus.”
Stern has been critical of this for some time. In November 2017, almost a year after the Antisemitism Awareness Act was introduced by a bipartisan group of Senators and Representatives, he testified before the House that passing the act “will do great damage to the academy, but also will harm Jewish students and faculty teaching Jewish and Israel studies.”
The IHRA definition, Stern explained, was developed to help monitors of antisemitism determine whether certain actions actually qualified as antisemitism — not to be used as a definition to determine whether certain speech acts were permissible or not.
Stern told me that while the Anti-Semitism Awareness Act and Trump’s order have some differences, they both pose the same problem. “It’s taking the definition of antisemitism and saying it has an appropriate place to apply to campus,” he said. “And inevitably when you have a Congressional, or in this case White House-preferred definition of some form of bigotry that’s conjoined with the ideas of political speech, it’s really a bad idea.”
Israel supporters have for many years insisted that college campuses are uniquely poisoned by antisemitism, taking the form of anti-Zionism. Drawing from a critique developed in the 1970s that links anti-Zionism to anti-Jewish bigotry (called “The New Antisemitism”), advocacy groups like the Anti-Defamation League, StandWithUs, or The David Project push the line that boycotts of Israel (through the Boycott, Divestment, and Sanctions movement) or “Students for Justice in Palestine” pose a unique threat to Jews on campus that deserves special protection. That this dovetails with the agenda of pro-Israel advocates and the Israeli government itself — which has an entire government ministry committed to fighting BDS and criticism of Israel abroad — is kind of the point.
These organizations keep tabs on campus critics of Israel, and have for years pressured universities to further restrict the speech and organizing of Palestinian rights activists on campus. Trump’s executive order may now make this possible.
“Under the order, the administrators at universities would have to ensure that any activities on campus do not come close to putting them on the wrong side of this definition or they risk losing federal funding,” Yousef Munayyer, head of the U.S. Campaign for Palestinian Rights, told me.
Although news of Trump’s executive order was suddenly announced on Tuesday night — characterized misleadingly by the Times as an official redefinition of how Jews are recognized by the government — the order puts into practice what has been Trump White House policy for some time. Trump last year tapped Kenneth L. Marcus, a lawyer with well-established pro-Israel bonafides, as the head of the Education Department’s Civil Rights Division. In September, the Education Department ordered Duke and the University of North Carolina to revamp their Middle East Studies programs or risk a funding cut, arguing that the schools taught Islamic culture more positively than Judaism or Christianity.
With the news on Tuesday of what appears to be a targeted shooting at an Orthodox Jewish kosher market in Jersey City, Trump’s executive order scans as another depressing episode in the reemergence of antisemitism as a force in American public life. Though Trump and his allies frame the order as a maneuver to root out antisemitic behavior, “if you think about how it would actually work, it would disempower important discussions about Israel and it would actually harm students,” Stern observes.
But this only covers part of the equation. The intended target of the executive order are advocates for Palestinian human rights, predominantly Arab and Muslim students who may now be told by their universities that actually, your student group can’t invite so-and-such speaker because otherwise we may lose a quarter of our funding.
“It really is Palestinian civil rights activism on campus that is the target of this,” Munayyer stressed to me. “It has ramifications beyond the American Jewish community.”
